Joyce v Yeomans
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER,LORD JUSTICE BRANDON,SIR DAVID CAIRNS |
| Judgment Date | 09 December 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J1209-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 1973 J No 6042 |
| Date | 09 December 1980 |
[1980] EWCA Civ J1209-2
Lord Justice Waller
Lord Justice Brandon
Sir David Cairns
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Division
MR R. TITHERIDGE, Q. C. and MR RUBENS (for Miss M, Legan) (instructed by Messrs Lickfold Wiley & Powles, agents for Taylor Hindle & Rhodes) appeared on behalf of the Appellant.
MR R. CLEGG, Q. C. and MR M. BROMPTON (instructed by Messrs James Chapman & Co., Solicitors, Manchester) appeared on behalf of the Respondent.
This is an appeal from a decision of Mr Justice Thompson given on the 5th July 1979 when he awarded £7,500 to the Plaintiff. The Plaintiff was a boy who was born in 1963 who had a serious accident in February 1973, when he was a few months short of his tenth birthday. The accident happened when he was watching the snow in the evening, and a car skidded into a garden, causing him a head injury, some 6 inches in length, a rupture of the spleen, a fracture of the clavicle, and he was in hospital only a few weeks. He recovered at that stage well, but he did complain of some "dizzy" spells.
By October 1973 he was getting visual disturbance, hallucinations, and in February 1974 an E. E. G.. revealed a focal abnormality of a temporal lobe and temporal lobe epilepsy was diagnosed.
At that stage he was about to start at Grammar School, and he did start at Grammar School in September 1974 when he was 11 years of age. The attacks that he was having then were such that he was put on to phenobarbitone, and during the first three years that he was at Grammar School, his general performance and behaviour was poor to bad. During that period, he had four or five grand mal attacks, and in 1975 there was another E. E. G.. which confirmed an earlier one, although later there were two others which showed no abnormality.
In February 1975 he was seen by Dr Evans. There was a claim against the Defendants at this time, and Dr Evans was asked to examine the boy and make a report, and he did so in February 1975. His conclusion was that the Plaintiff was suffering from epilepsy. He said in his report: "It seemsthat since the accident Michael has developed attacks of minor epilepsy which arise, in all probability, from an epileptic focus in the posterior temple region of the brain. It is unlikely, in my opinion, that the epileptic focus was due to the head injury that occurred in the accident in question. In all probability the epileptic focus has been present since birth and the head injury in question had the effect of bringing out epileptic attacks which would, in any case, have developed in the next few years", and he thought that that would have been probably before the age of fourteen.
The contrary view was expressed in July 1975 by Dr Gordon who bowing described the epileptic seizures, said this: "As they have only occurred since the accident and as I was unable to find any history of a possible cause prior to the accident, I feel it must be presumed that the minor seizures have resulted from the head injury". There was then an exchange of reports, but neither doctor accepted the view of the other.
At the trial evidence was given by Dr Evans for the Defendant and by Dr Neary and Dr McKinlay for the Plaintiff. Dr Neary was called into the case at a late stage because what appears to have been the best qualified medical witness of the Defendants, Mr Liversedge, had unfortunately died.
At the trial the learned Judge accepted the evidence of Dr Evans. He said: "Dr Evans is in the minority amongst the doctors whose opinions I have before me. Nonetheless, I accept his view as correct. What the accident did in the case of the Plaintiff was, in my judgment, to bring on attacks of epilepsy earlier than, had there been no accident, they wouldhave been likely to manifest themselves".
Mr Titheridge on behalf of the Plaintiff has submitted that the learned Judge was wrong in preferring the evidence of Dr Evans. He submitted, in a very persuasive argument, that Dr Evans in the course of his evidence had said that in his experience one-third to one-half of his patients who had temporal lobe epilepsy did not give a history of any disturbance or occurrence at birth or before (that is to say, before the epilepsy started) and therefore, Mr Titheridge submitted, when considering this case, at the most the very worst it was only an even chance that there was some previous pre-disposing factor and that accordingly there was insufficient evidence to upset what he submitted was the primary influence that the epilepsy was caused by the accident.
He further submitted that in cross-examination Dr Evans agreed that it was one of the factors which he took into consideration which could have happened without a pre-disposing cause. He submitted that this was a case in which the learned Judge's finding of fact could be interfered with.
As I have said, Dr Evans a consultant neurologist and a Fellow of the Royal College of Physicians, expressed the view quoted above at the beginning; he had told the Defendants' Solicitors to send his opinion to those representing the Plaintiff because he thought they might agree it. They did not. The Defendants then went to Dr Liversedge, another consultant neurologist and a Fellow of the Royal College of Physicians and he said in his report, expressing the view that this was probably a result of the accident: "… it is extremelydifficult to support the view that his epilepsy was in any way constitutionsal and I would be inclined to agree with the opinion expressed by Dr Gordon that these attacks are post-traumatic, particularly in view of the focal abnormality on the electroencephalograph. In short, therefore, I would disagree with Dr Evans' conclusions. This is clearly a very important case and for this reason I think we must carry out one of the new E. M. I.. Scans, which will be most helpful in establishing the presence or the absence of any focal change due to trauma".
So an E. M. I.. Scan was done and it was negative. Dr. Liversedge said that that was encouragement for the future but did not alter his opinion, but one cannot help having the impression that Dr Liversedge thought that the E. M. I.. Scan would be decisive in his favour.
At the trial as I have already said, Dr Neary gave evidence instead of Dr Liversedge, and Dr Evans also gave evidence. I think I should quote just one or two of his answers because it is his evidence that is being attacked. Dealing with the E. M. I.. Scan he said in answer to the learned Judge's question: "You would expect it to be shown in the temporal region if there had been brain damage caused by the accident? (A) That is what I mean, yes". And so he was attaching some importance. to that particular factor. He also said that he would expect post-traumatic amnesia of more than 24 hours as being the kind of factor he was looking for if it was to be attributed to the accident; and in this case the post-traumatic amnesia was said to be 12 to 24 hours.
He also said that he would have looked for a history of complications, such as a depressed fracture or a blood clot or, he said "a history of epilepsy within 7 days of the impact but none of those arose". He thought that the symptoms of post-traumatic epilepsy should have developed earlier than in fact they did. He said that about 50 per cent of patients developed this within 12 months, and he was apparently excluding such symptoms as appeared within 11 months in this case.
He also relied on the head injury as not being the kind of head injurywhich he would expect to cause temporal lobe epilepsy. He agreed, as I have already said, that each one of those things might not have happened with epilepsy caused directly by the accident, but he was relying on all of them.
Mr Titheridge sought to rely on the case of Stojalowski -v- Imperial Smelting Corporation (N. S. C..) Ltd. where this Court did reverse the view of a medical witness which had been formed by the learned Judge. The abbreviated report in the Solicitor's Journal, Volume 121 at page 118 is accurate so far as it goes, but a perusal of the transcript reveals a totally different situation from the present case in that there were a number of factors in the case which were impossible to reconcile with the evidence of the witness.
The demeanour of a medical expert giving evidence is probably mot so important as other witnesses of fact when the value of his evidence is being assessed, but in my opinion the observations of Lord. Tankerton in the well known case of Watt (or Thomas) -v- Thomas (1947) Appeal Cases, page 487 where he was considering the position of an Appellate Court when dealing with a finding of fact by the learned Judge should beborne in mind. He set out two principles which I will quote: "1. Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an Appellate Court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the Trial Judge of having seen and heard the witnesses, could not be sufficient to explain or justify the Trial Judge's conclusion". Then 3. "The Appellate Court, either because the reasons given by the Trial Judge are not satisfactory or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the Appellate Court".
In this case the learned Judge had three medical witnesses of high qualifications. There was no question of other credible witnesses giving evidence contradicting the facts on which the experts gave their opinion. In this case there was no dispute about the basic...
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