Page v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 12 March 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0312-7 |
| Docket Number | QBENF 93/0098/C |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 1996 |
[1996] EWCA Civ J0312-7
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr Justice Otton)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Morritt Lord Justice Auld
QBENF 93/0098/C
MR J PRIEST QC with MR A HOGARTH (Instructed by Messrs Harry R Pearce, West Sussex, RH17 7RE) appeared on behalf of the Appellant
MR C MACKAY QC with MS J RICHARDS (Instructed by Messrs Edward Lewis, Chancery Lane, London WC2A) appeared on behalf of the Respondent
Tuesday, 12 March 1996
THE MASTER OF THE ROLLSOn 24 July 1987 the plaintiff in these proceedings was driving his car in Bury St Edmunds when the defendant negligently drove across his path and a collision took place for which the defendant was solely responsible. The collision was described by the judge as one of "moderate severity". By that expression the judge plainly meant that it was one which fell neither into the most serious nor the most trivial category of motor accident. The impact was severe enough to cause considerable damage to both vehicles, and it proved uneconomic to repair the plaintiff's car which was old and of modest value. But neither the plaintiff nor the defendant nor the occupants of the defendant's car were physically injured. In the action the plaintiff claimed damages, not for physical injury, but for an exacerbation of a medical condition from which he had admittedly suffered before the collision.
This condition was Chronic Fatigue Syndrome (or "CFS"). Other doctors refer to the condition by other names, the choice of name often depending on the doctor's opinion on the origin and nature of the disease. This diversity of opinion is explained by the relatively recent recognition of CFS by medical practitioners, and by the difficulty which they have experienced in defining its origin and characteristics. There are some doctors who challenge the existence of the condition altogether, but the judge found that it is a scientifically recognised illness, and there is no appeal against that finding.
On 22 December 1992 Otton J delivered a long and very detailed judgment in which he concluded that the defendant's negligence had significantly exacerbated the condition from which the plaintiff suffered. He accordingly awarded the plaintiff damages, although reducing these substantially to reflect the probability that the plaintiff would, even without the collision, have continued to suffer the symptoms associated with CFS from time to time.
The defendant appealed to this court raising three main contentions: first, that the personal injuries of which the plaintiff complained were not a foreseeable result of the defendant's negligent driving; secondly, that the defendant's negligent driving had not caused those injuries; and thirdly, that the damages awarded by the judge had been excessive. The Court of Appeal unanimously upheld the first of those grounds of appeal: [1994] 4 All ER 522. In the first judgment in the Court of Appeal Ralph Gibson LJ analysed and summarised the judgment of the judge with great precision and accuracy. Farquharson and Hoffmann LJJ also referred to the facts of the case. The second, causation, ground was upheld by Ralph Gibson LJ, but neither Farquharson LJ nor Hoffmann LJ thought it necessary to express an opinion on that issue. The challenge to the measure of damages was dismissed by Ralph Gibson and Hoffmann LJJ.
The plaintiff appealed to the House of Lords on the issue of foreseeability, and by a majority the House allowed his appeal and remitted the issue of causation to the Court of Appeal: [1996] 1 AC 155. Since this is the tenth judgment in this case, and the facts have been fully rehearsed in previous reported decisions, I shall confine myself to the barest reference to the facts necessary for purposes of this appeal.
Two points are raised by the defendant on appeal. First it is said that the judge misdirected himself in law on the test to be applied; secondly, it is submitted that on the facts he was not properly entitled to reach a decision in favour of the plaintiff. These issues must be considered separately.
1. The test
At the outset of his judgment the judge formulated the questions which he had to answer. The relevant question for present purposes was:
"Did the road traffic accident cause or materially contribute to the condition that has prevailed since the accident?"
At page 38 line 9 of the transcript of his judgment, the judge indicated his legal approach to answer this question:
"Putting all this evidence together and those submissions of law, it seems to me that the test is: did the accident, on the balance of probabilities, cause or materially contribute or materially increase the risk of the development or prolongation of the symptoms of CFS which he currently suffers? This is to be derived from the decisions of Bonnington Castings v. Wardlaw, McGhee v. National Coal Board, and Wilsher v. Exeter Health Authority. I am satisfied on the balance of probabilites that the defendant's negligence materially contributed to the recrudescence of the CFS and converted that illness from a mild and sporadic state to one of chronic intensity and permanency. The vital element is that it should be a material contribution, i.e. it should not be merely a minimal or trivial or insignificant contribution.
I have come to the conclusion that although they undoubtedly play their part in the make up of the plaintiff before and after the accident, none can be promoted to the sole cause or the 'joint sole cause' of the relapse, so as to exclude any significant contribution of the effects of the accident."
Various criticisms were made of this passage. First, it was said that the judge was wrong to refer to a material increase of the risk, which was clearly an echo of the difficult decision of the House of Lords in McGhee. In my judgment there is force in that criticism. In McGhee the question was whether the plaintiff could recover when, although the defendant's negligence had exposed him to an increased risk of contracting dermatitis, he could not show that he had probably suffered damage as a result of exposure to that risk. In the present case, the question is not whether the plaintiff was exposed to an increased risk of exacerbation of his existing symptoms, but whether the accident did in fact have that result. It was not, in my view, a case concerned with risk at all. I do not, however, conclude that this criticism assists the defendant since, although the judge on page 38 of the transcript posed the question in terms which made reference to risk, he made it plain when answering that question that he was simply concluding whether the negligence had materially contributed to the plaintiff's symptoms, and not whether it had exposed him to an increased risk.
Secondly, it was argued that the judge had erred in asking whether on the balance of probabilities the defendant's negligence had materially contributed to the recrudescence of the plaintiff's symptoms. He should, it was said, have asked himself whether on the balance of probabilities the plaintiff would have suffered the injury for which he was claiming compensation but for the defendant's negligence. I do not for my part accept these criticisms. In a case in which other causes could have played a part in the causation of the defendant's exacerbated symptoms, it was in my view entirely appropriate for the judge to direct himself in the way that he did, reminding himself that a cause was only to be regarded as material if it was more than minimal or trivial or insignificant. I cannot in any event see that in a case such as this the outcome would be different whichever test is formulated. The judge had already accepted the view expressed by one of the medical experts that the plaintiff's recovery would probably have continued but for the accident. The judge adopted a straightforward, pragmatic approach which was in my judgment entirely appropriate in the circumstances.
It was argued thirdly that the judge was wrong to address the question whether the accident was the sole cause or whether there was any other sole cause. Had the judge expressly or impliedly cast an onus on the defendant to eliminate other possible causes of the plaintiff's injury, that would certainly have been wrong. But the judge did not do that. Having formed a tentative view that the accident had probably caused the exacerbation of the plaintiff's symptoms, he turned to consider other possible causes with a view to seeing if any of them should be identified as the sole cause of the accident. He accordingly reviewed various suggestions that had been made in the course of argument and evidence: it had been suggested that the plaintiff had read medical literature relating to CFS and had, as a result, become unconsciously susceptible to a relapse; it had been suggested that he had found his occupation as a teacher stressful, and that accordingly he had been relieved to find that he would not have to return to work; it had been suggested that the stress of involvement in litigation was the cause of his exacerbated symptoms; it had been suggested that he was perfectly content to live without occupation as he was doing; and it had been suggested that a combination of some of these factors might account for his symptoms to the exclusion of any effect caused by the accident itself. The judge rejected some of these suggestions outright and rejected others as a sole cause of the plaintiff's symptoms. I...
To continue reading
Request your trial
-
Grieves v Everard and Sons and Another and associated claims
...to suffer psychiatric injury. The latter test would not be hard to satisfy, as is evidenced by the opinion of the majority of the House in Page v Smith [1996] AC 155 . But in my opinion the latter test was applicable only in the special circumstances of that case, to which I shall in due ......
-
Grieves v Everard and Sons and Another and associated claims
...to suffer psychiatric injury. The latter test would not be hard to satisfy, as is evidenced by the opinion of the majority of the House in Page v Smith [1996] AC 155 . But in my opinion the latter test was applicable only in the special circumstances of that case, to which I shall in due ......
-
A and B v Essex County Council
... @media screen{}@media print{@page ... Page v Smith [ 1996 ]A C 155 , HL(E) applied. Decision of Buckley J [ 2002 ] EWHC 2707 (QB) a±rmed on dierent grounds. The following cases are referred to ... ...
-
Corr (Administratrix of Corr, deceased) v IBC Vehicles Ltd
...used to be called "nervous shock." There is a much fuller discussion of the aetiology of ME in the judgments in the Court of Appeal [1994] 4 All ER 522, where Hoffmann LJ observed that the distinguishing feature of psychiatric damage was its causation rather than its symptoms; it would inc......