Fifield v Denton Hall Legal Services (A Firm)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Jonathan Parker,Lord Justice Buxton |
| Judgment Date | 08 March 2006 |
| Neutral Citation | [2006] EWCA Civ 169 |
| Date | 08 March 2006 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2005/0831 |
[2006] EWCA Civ 169
Lord Justice Buxton
Lord Justice Jonathan Parker and
Lord Justice Wall
Case No: B3/2005/0831
Jonathan Waite QC and A. John Williams (instructed by Messrs Halliwells, Solicitors) for the Appellants
Mr Allan Gore QC and David Sanderson (instructed by Messrs Charles Russell LLP, Solicitors) for the Respondent
Introduction
With permission granted on paper by Clarke LJ (as he then was) on 1 July 2005, Dentons (as the judge, without objection, collectively described the appellants despite their four different manifestations on the pleadings) appeal against an award of damages made against them on 22 March 2005 by His Honour Judge Reid QC sitting in the Guildford County Court in favour of Mrs. Kathryn Fifield, the claimant before him and the respondent to this appeal.
Mrs. Fifield's claim was for personal injuries in the form of a work-related upper limb disorder incurred during the course of her employment as a secretary by Dentons, and brought about, on her case, by the latter's negligence and breach of statutory duty. The judge found that Mrs. Fifield's claim succeeded on both heads. The total sum he awarded her was £157,341, more than half of which related to loss of future earnings. It is, however, unnecessary to examine the breakdown of the damages, since the appeal goes to liability only, not to quantum. Dentons properly accept that if the appeal on liability fails, then the amount of the damages awarded by the judge is not open to challenge.
The judge also ordered Dentons to pay Mrs. Fifield's costs, subject to a detailed assessment on the standard basis if not agreed, and with a payment of £100,000 on account to be made by 19 April 2005. As is already apparent, the judge refused permission to appeal.
Mrs Fifield was employed by Dentons as a secretary for some 19 years. She joined the firm in July 1980, when she was rising 24, and her employment ceased on 16 July 1999, when she was rising 43. At that point she was a senior secretary or "key operator", who could advise other more junior staff about their work. She was the secretary to one of the firm's partners, Mr. Kenneth Dearsley. It was common ground that she was good at her job and a hard worker. She regularly received good annual assessments from the partners for whom she worked, including Mr. Dearsley. The judge also found that she had a good health record until the summer of 1999, taking only short periods of maternity leave following the births of her two children and with few other absences for ill-health. She was, as Mr. Dearsley accepted, and the judge found, "a useful calming influence in times of apparent crisis".
Mrs. Fifield's case, in a nutshell, was that, although she had from about 1989 suffered intermittent pain in her wrists, it was from about 1998 onwards that she slowly developed a build up of pain in her hands, mostly in the morning, and that this caused some difficulty typing. The pain also moved up to her elbows and shoulders, and eventually to her neck. She is right handed and the symptoms were worse on her right side.
It was common ground that in early 1999, Mrs Fifield's workload increased substantially. She put the increase at 50%, but the judge preferred Mr. Dearsley's evidence that the increase was in the region of 25% to 30%. Mrs Fifield's case was that her symptoms became more severe and more frequent in early 1999, and that on 17 February 1999, she consulted her general practitioner, Dr. Victor Montegriffo. Dr. Montegriffo referred her to a rheumatologist, Dr Andrew Young at the local community hospital. Dr Young recommended physiotherapy, which Mrs. Fifield began in June 1999. This did not, however bring any relief, with the result that she was signed off work for two weeks on 16 July 1999. In the event, the symptoms did not resolve during that fortnight, and Mrs. Fifield has not worked since 16 July 1999.
The issues in the case
Dentons ran three defences before the judge. The first was that Mrs. Fifield was suffering from a somatoform disorder, and that the pain and disability she appeared to suffer were psychosomatic in origin. That defence was based on psychiatric evidence called by Dentons which the judge rejected. There is no appeal on this part of the case.
Dentons' second defence was that Mrs. Fifield's symptoms were not work related. The third defence was that, even if the injuries were work related, they were not caused by any negligence or breach of statutory duty on Dentons' part. On the pleadings, Dentons denied any breach of statutory duty, but asserted, in the alternative, that if and to the extent that they were in breach of their statutory duties towards Mrs. Fifield, any such breach or breaches were not causative of Mrs. Fifield's injuries. The judge's rejection of these two defences form the bedrock of this appeal, and the nine grounds of appeal which encompassed them were skilfully developed in oral argument by Mr. Jonathan Waite QC.
(1) The first limb of the appeal: were the injuries work related?
The argument on this aspect of the appeal depends critically upon the judge's finding, based on what he held to be agreed medical evidence, that for Mrs. Fifield's injuries to be work related, there needed to be a temporal connection between the change in Mrs. Fifield's workload in early 1999 and the severe symptoms of which she then complained. The witnesses to whom the judge refers in the extract from his judgment which follows are Dr Martin Seifert (a rheumatologist instructed by Mrs. Fifield) and Mr. Rupert Eckersley (a hand surgeon instructed by Dentons) whose evidence I will have to discuss in detail. The judge said:
"75. Thus by the end of their evidence, I was left with the position that it was common ground that, if there was a temporal association between the change of activities and the symptoms, on the balance of probabilities the change was the cause of the symptoms. Thus, if there, the big increase in work in late 1998 and / or in early 1999 and the first relevant attendance on her doctor was in February 1999, the increase in work was on balance likely to be the cause, and a build up of work (as opposed to a sudden increase) could achieve the same result.
76. Mrs. Fifield's case is that there is a close temporal relationship between the increase in workload and the development of the symptoms. Mrs. Fifield had had long standing symptoms in her arms which had not been sufficiently severe to take her to the GP between 1993 and 1999, though she had been taking some medication (presumably pain killers) at the time of her work station assessment. During 1998, her workload increased when Mr. Dearsley joined the Management Board and took over Chairmanship of the PAC (Dentons' Partnership Admissions Committee) . Her symptoms increased somewhat. In January 1999 there was a significant increase in workload when the 1999 PAC round commenced and Mrs. Fifield was required to do all the PAC secretarial work in addition to her normal workload. She began to experience more serious symptoms which took her to the GP in mid-February 1999. The increased workload as a result of the PAC continued until March or April 1999, but the symptoms worsened in May and June 1999 and became chronic over the summer. The onset of the more serious symptoms in February 1999 and the deterioration in May and June 1999 therefore had a close temporal association to the significant increase in work over the period January to April 1999. The onset was during the period of increased workload and the deterioration was within 1 or 2 months of the conclusion of that period. The period of 3 to 4 months prior to December 1998 was not therefore the relevant period in the light of that history. (italics mine)
77. On this basis the balance of probabilities (subject to any question that the pain is the result of a somatoform disorder) must be that the condition is work related. I note that three doctors who saw her at the time all took the view at the wrist pains had arisen in consequence of her work ….."
I have italicised the final sentence of paragraph 76 of the judgment because it formed the starting point for Mr. Waite's submission that the judge had been wrong to find; (1) that the onset of more serious symptoms occurred in February 1999 and not in 1998; and (2) that there was a close temporal association between the alleged onset of more serious symptoms in February 1999 and the significant increase in work in the period from January 1999.
The developments of Mrs. Fifield's symptoms
Both the development and any analysis of Mr. Waite's submission require a detailed examination of the written and oral evidence. In her particulars of claim, the onset of Mrs. Fifield's symptoms was described in paragraphs 14 and 15 in the following way: -
"14. From about 1998, the Claimant slowly developed a build up of pain in her hands, mostly in her wrists. She noticed stiffness in the small joints of the hands, mostly in the morning and this caused some difficulty typing. The pain also moved up to her elbows and shoulders and eventually to her neck. The Claimant is right handed and the symptoms were worse on her right side.
15. The symptoms were intermittent, but the from the (sic) beginning of 1999 the pains became more severe and more frequent."
12. We were not referred to Mrs. Fifield's two witness statements in the...
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