Ministry of Defence v Shaun Wood
| Jurisdiction | England & Wales |
| Judge | Dame Janet Smith,Lady Justice Black,Lord Justice Moore-Bick |
| Judgment Date | 07 July 2011 |
| Neutral Citation | [2011] EWCA Civ 792 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2010/14617 |
| Date | 07 July 2011 |
[2011] EWCA Civ 792
Lord Justice Moore-Bick
Lady Justice Black and
Dame Janet Smith
Case No: B3/2010/14617
MB01743
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT DISTRICT REGISTRY AT MIDDLESBROUGH
HIS HONOUR JUDGE TAYLOR
(sitting as a Deputy High Court Judge)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jeremy Johnson & Ms Lucinda Boon (instructed by Morton Fraser) for the Applicant
Mr Andrew Hogarth QC & Mr Jeremy Freedman (instructed by Thompsons Solicitors) for the Respondent
Hearing date: 28 March 2011
Introduction
This is an appeal from the order of HH Judge Taylor sitting as a Deputy High Court Judge in Middlesbrough on 5 May 2010. The claimant, Shaun Wood claimed damages for a neurological condition akin to Parkinson's disease which he alleged had been caused by his exposure to organic solvents during the course of his service in the RAF. During the hearing, which was limited to issues of liability and causation, the Ministry of Defence ( MOD) made an admission of breach of duty but continued to dispute that its breach had caused the claimant any damage. Issues of limitation had been resolved in the claimant's favour at an earlier hearing.
Mr Wood was born in 1958 and served in the RAF from 1975 until 1995. Immediately after his initial training, he became a painter and finisher and remained in that trade throughout his service. It was common ground that, in the course of his work of stripping, painting and finishing aircraft, he used a variety of organic solvents and was exposed to them both by inhalation of fumes and by skin contact which could result in absorption into the body. During his service, the claimant had been moved to various different RAF bases but the methods of work were not, in general, very different. However, the claimant alleged that, towards the end of his service at Bruggen in Germany, which ran from 1987 to 1991, his working conditions were particularly bad. They were also bad when he was moved to RAF Leeming in 1991. The claimant became unfit for work on account of his increasingly disabling symptoms and was discharged from the RAF in 1995.
The claim against the MOD was limited to exposure which had occurred after 1987 and the MOD's admission of breach of duty was limited to that period. It was common ground that, whatever the working conditions, the MOD was entitled to rely on Crown immunity from suit before that date. Thus the breach of duty covered exposure during the period between 1987 and 1995.
It was common ground that the solvents used by the claimant—and in particular dicholoromethane and trichloroethylene which he used very regularly—are neurotoxic substances: that is that they are capable of causing damage to the nervous system. The claimant alleged that he had suffered permanent organic damage to his nervous system resulting in a condition akin to Parkinson's disease. The MOD contended that, although solvents could cause temporary effects on the nervous system—and could even cause death if the dose were large enough—there was no satisfactory scientific evidence that they could cause permanent damage short of death. Moreover, the MOD contended that the claimant had not suffered any permanent neurological damage and that his symptoms were entirely or almost entirely due to psychological factors. The main questions for the judge were therefore (i) whether the claimant was suffering from an organic condition as opposed to symptoms due to psychological factors; (ii) if so, whether that condition had been caused or contributed to by negligent exposure to organic solvents at work. The second question necessarily involved consideration of whether the solvents the claimant had been exposed to were capable of causing permanent organic damage of the kind which the claimant contended he had suffered.
The judge answered both questions in the claimant's favour. The MOD now appeals that decision with permission granted by Toulson LJ.
First issue – whether or not the claimant was suffering from an organic condition
The medical conditions under discussion
Before describing the history of the development of the claimant's condition and the diagnostic problems which arose, it may be helpful if I describe the medical conditions under discussion.
Parkinson's disease (PD) is a progressive neurological disease of insidious onset which usually develops in the second half of life. It is due to degenerative change in the ganglia at the base of the cerebrum, leading most commonly to a deficiency in a neurotransmitter called dopamine. The damage is often described as extra-pyramidal. The condition is usually described as idiopathic because the cause or causes of the degeneration are not known. However, genetic factors appear to play a large part. The condition manifests itself by increasing rigidity of the muscles. This can result in a tremor of the hand or hands, often exaggerated by excitement and ceasing during sleep. Often there is bradykinesia (slowness of movement). In the face, there can be loss of expression and the voice may be affected by the loss of play in the lips, tongue and larynx. Later the limbs become rigid and the patient can develop a tottering or shuffling gait. There is no cure but drugs such as levodopa can reduce symptoms.
Multi-system atrophy (MSA) is also a neurological degenerative disease of unknown aetiology. It is very rare, much more so than PD. The early features are usually of parkinsonian type (eg tremor and rigidity) and the condition is often mistakenly diagnosed as PD in the early stages. However, as time goes by, autonomic features appear, such as bowel and bladder dysfunction allowing the diagnosis of MSA to be made. A full house of signs and symptoms usually takes many years to develop. An abnormal anal sphincter EMG is said to be diagnostic in most if not all cases but a positive diagnosis which can differentiate the condition from PD can only be confirmed at autopsy. Treatment is usually the same as for PD, namely levodopa-containing agents. These often give a good result in the early stages but the duration and quality of benefit are often disappointing. Sufferers usually have a quite short expectation of life, on average 8.6 years from diagnosis.
Much of the discussion between the medical experts turned upon whether the claimant had PD or MSA or whether he had a non-specific degenerative neurological condition which did not fit the diagnostic criteria of either PD or MSA. In the end, that was his contention, although at the outset he had pleaded that his condition was MSA and PD. The defendant contended that his condition was almost entirely non-organic – in other words it was due to psychological factors.
History of development and diagnosis of the claimant's condition
In addition to disputing that the claimant's condition was organic, the MOD was anxious, for reasons which will appear later, to establish that the first manifestation of the claimant's neurological disturbance (tremor) had begun during the late 1980s. The claimant's case was that it had not developed until about the end of 1992 or early 1993. I will deal with this issue now.
The claimant first consulted his squadron medical officer on account of his tremor in April 1993. The contemporaneous record of that consultation suggests that it had first been noticed about 4 months earlier. The judge noted that in previous years, the claimant had consulted the RAF doctors on a number of occasions about a variety of matters and there had been no reference to a tremor. True it was that, in later records, beginning in 1995, there were references to the onset of a tremor at earlier dates, sometimes 1987 and sometimes 1989. However, the judge found that the tremor had not manifested itself until about December 1992. In view of the contemporaneous records of 1993 and the claimant's evidence (accepted by the judge) that in 1992 he had run a marathon in just over 3.25 hours but in the following year he had found his running ability impaired, in my judgment the judge's finding as to the onset of symptoms cannot be challenged.
At an early stage of his judgment, the judge considered the claimant's medical records in some detail. The purpose of this was to set the scene for the rival contentions of the medical experts called at the trial.
Early assessment of the claimant by RAF medical staff in April 1993, when a tremor was observed, resulted in a tentative diagnosis of PD. In August 1993, Group Captain Merry, consultant adviser in neurology, recorded an involuntary rhythmic resting tremor of the right arm, with minimal bradykinesia and rigidity of the limb. There were no other signs of cerebella ataxia. Gait was normal with a normal swing of the right arm. Facial expression was normal. Again the tentative diagnosis was PD. Medication was commenced but apparently not levodopa. On review in September 1993, it was recorded that the previously reported symptoms of tiredness and aching had improved since medication had begun but otherwise the picture was much the same. In November 1993, when reviewed by Squadron Leader Gregory, who was later to become a professor of neurology, the note reveals the presence of further neurological signs, including paucity of facial movement, some axial limb rigidity and abnormality of the right arm swing. There was tremor and bradykinesia in the hand. The claimant reported urinary frequency which was the first autonomic sign mentioned. He was referred to the National Hospital for...
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