Geest Plc v Lansiquot

[Delivered by Lord Bingham of Cornhill]

At the conclusion of the argument the Board announced that it would humbly advise Her Majesty that this appeal should be dismissed with costs. The Board now gives its reasons for that decision.

The issue in the appeal is whether the damages which the plaintiff, Mrs Lansiquot, would otherwise have received should have been reduced because she had failed to mitigate the damage she had suffered by undergoing a surgical operation on her back.

The plaintiff, employed by Geest Plc as the company's shipping manager, was visiting a vessel on 27 March 1994 when she caught her foot and fell and hurt her back. She issued a writ against the company claiming damages for personal injuries on 14 March 1996. Particulars of her claim were pleaded in conventional form in a statement of claim dated 13 March 1996. The writ was duly served on the company out of the jurisdiction and it entered an appearance on 12 April. No defence was served and judgment was entered in default of defence for damages to be assessed. At a pre-trial hearing in chambers on 20 September 1998 directions were given by consent for the conduct of this assessment. The plaintiff was directed to file and serve a summons for the assessment of damages; affidavits in support and in opposition were to be filed and served by 10 November 1998; a current medical report was to be exhibited by the plaintiff; evidence in chief was to be by affidavit only; the plaintiff was to make herself available for cross-examination. The assessment was fixed for 1 December 1998 in the afternoon, and after one adjournment came on for hearing on 9 December before Mitchell J (Acting) in chambers.

The evidence before the judge consisted of an affidavit of the plaintiff to which a number of medical reports and some other documents were exhibited. The company adduced no evidence. The plaintiff was represented at the hearing by leading counsel and was cross-examined by counsel for the company. In his closing speech for the company, after the plaintiff's counsel had made his submissions, counsel advanced the argument that the plaintiff had failed to mitigate the damage she had suffered as a result of her injury by declining to undergo a surgical operation. In a written judgment delivered on 18 December 1998, the judge accepted that argument and limited the general damages recoverable by the plaintiff to "damages for pain, suffering and loss of amenities for a reasonable period of time beyond which it is unreasonable for her to have continued to have subjected herself by refusing to undergo the recommended surgery". The judge made a total award of EC$80,000.

The plaintiff appealed to the Court of Appeal (Singh, Redhead and Matthew JJA) which, in a unanimous written judgment given on 7 February 2000, reversed the trial judge's decision on mitigation of damage and applied a somewhat higher multiplier than the trial judge would have done. It increased the award to the plaintiff to a total of EC$348,000. Before the Board the company challenges the Court of Appeal's decision on the issue of mitigation and also on one aspect of its approach to the quantification of damages.

Following her accident on 27 March 1994 the plaintiff consulted her general practitioner in early April 1994 complaining of waist pains radiating to her thighs. A CAT scan showed a central prolapse of her L4/L5 disc space, more marked on the left side and compressing both L5 roots. There was a mild bulge noted at the L5/S1 level. Conservative treatment was advised. Pain and discomfort to her lower back persisted and on 21 April 1994 the plaintiff consulted Mr Seale, an orthopaedic surgeon in Barbados. He diagnosed a prolapsed disc at the L4/L5 level and made arrangements for a myelogram to be carried out, which showed a small disc protrusion at that level but did not appear to show compression of the nerve roots. He advised that conservative treatment be continued but that she should undergo a magnetic resonance scan of the spine and discs if her back problems persisted. At consultations with her general practitioner on 3 June and 25 June 1994 the plaintiff's condition was found to have improved somewhat, although painful episodes persisted.

A further CAT scan on 14 July 1994 showed no change. Moderate pain continued and an MRI scan of her lumbar spine carried out in London on 1 February 1995 showed a central L4/L5 discal protrusion without evidence of neural compression. During her visit to England the plaintiff was examined by Mr Sharr, a consultant neurosurgeon. In a report dated 8 February 1995 he advised that he should initially carry out a percutaneous laser disc decompression, but he was not hopeful that this procedure would alleviate the plaintiff's symptoms and suggested that, if it did not, the plaintiff would need to have an open discectomy, probably about two weeks later. He made clear that he could not guarantee a good result even with surgery.

The decompression procedure was carried out on 15 February 1995 and led to some improvement over the next few months. In the summer of 1995 however the plaintiff suffered a relapse. A further MRI scan was carried out which still showed residual bulging of a degenerate L4/L5 disc but without clear evidence of neural compression. In a report dated 9 August 1995 Mr Sharr advised:

"I had a full discussion with you and I pointed out that, although there was still a chance of spontaneous remission and improvement etc, it did seem that an open operation was now beginning to appear on the horizon; removal of a significant volume of disc tissue would therefore have to be carried out, although it may also be necessary to consider an additional variety of a fusion. There was mutual agreement that you would return home to St Lucia to consider the situation and you might also consider seeking non-surgical advice from an expert such as a Consultant in Rheumatology and Physical Medicine or even one in chronic pain relief."

Following the advice of Mr Sharr, the plaintiff consulted Dr Amanda King, a consultant physician and rheumatologist. She considered that surgery was the best option but noted that the plaintiff was "not keen on surgery" and advised further conservative treatment. The plaintiff's condition did not improve and in March 1996 she again consulted Mr Seale, the orthopaedic surgeon who had previously examined her in April 1994. In a detailed report dated 22 April 1996 he confirmed the previous findings and advised in these terms:

" Recommendations

Is surgery necessary?

In answering this question, I would like to look at the pros and cons, in attempting to reach a conclusion.

Points in Favour of surgery

She has had all other treatment modalities, e.g. rest, physiotherapy, traction and laser disc decompression. These have all failed to cure her. Since...