R v Deputy Industrial Injuries Commissioner.ex parte Moore
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,JUSTICE PEARSON,LORD JUSTICE DIPLOCK |
| Judgment Date | 26 November 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J1126-2 |
| Court | Court of Appeal |
| Date | 26 November 1964 |
[1964] EWCA Civ J1126-2
Lord Justice Willmer,
Lord Justice Pearson and
Lord Justice Diplock.
In The Supreme Court of Judicature
Court of Appeal
Appeal from Order of Divisional Court (C. B. D) dated 30th April, 1964.
Mr. PETER R. PAIN (instructed by Messrs W. H. Thompson) appeared on behalf of the Appellant (Applicant)
Mr. NIGEL C. BRIDGE (instructed by Mr. E. W. Ward, Solicitor, Ministry of pensions and National Insurance) appeared on behalf of the Respondent
This is an appeal from a decision of the Divisional Court of the Queen's Bench Division given on the 30th April 1964 dismissing a motion on behalf of the applicant, Kathleen Cicely Moore, for an order of certiorari to bring up and quash a decision of the 16th August 1963 of Mr. Neligan, the Deputy -Industrial Injuries Commissioner. The deputy commissioner dismissed the applicant's appeal against a decision of the appeal tribunal that an injury, in respect of which she had put forward a claim, was not caused by an accident arising out ofand in the course of her employment within the meaning of section 7, subsection (1), of the National Insurance (Industrial Injuries) Act. 1946.
The applicant was employed as a crane driver, and claimed in respect of an accident alleged to have occurred on the 16th April 1962. It was alleged that she had occasion to lean forward in the cab of her crane for the purpose of seeing that the lift of the crane was correctly positioned for the load which was to be lifted. This was a movement which in the ordinary course of her duties she was required to perform every few minutes during the working day. But on this occasion the movement caused a sharp pain in her back, which, however, disappeared when she straightened her back. She accordingly went on working, but later the pain returned. Three days afterwards, on the 19th April 1962, she was admitted to hospital, where the trouble was diagnosed as a prolapsed intervertebral disc. The applicant made a claim under the Act of 1946, but her claim was rejected by the Insurance officer, and on appeal by the local appeal tribunal.
On appeal to the deputy commissioner, an oral hearing took place, during which unsown oral evidence was given on behalf of the applicant by Mr. Evan Price, a consultant orthopedic surgeon, and on the other side by Dr Hayes, a senior medical officer of the Ministry of pensions and National Insurance. Dr Hayes's evidence was also supported by a statement obtained from another senior medical office of the Ministry. The view expressed by Mr. Evan Price was that the traumatic effect of the applicant leaning forward in the manner described was to cause a tear in the ligament, or annulus fibrosis, in the fourth or fifth lumbar vertebrae. This tear of the ligament, he thought, caused a condition of weakness, which enabled the centre of the disc (the nucleus pulposus) to obtrude, or prolapse, three days later. He expressed the view accordingly that the trauma resulting from the applicant bending forward was the direct cause of subsequent prolapse. On the other hand, Dr Hayes expressed the view that the prolapse was probably caused by a pre-existingdegenerative condition of the applicant's back, and that a normal ligament would be most unlikely to be torn by such a mild trauma could be caused by the mere act of bonding forwards.
It will be seen that the question raised was a purely medical one, and in such circumstances it may well seem surprising that the case should have given rise to proceedings for certiorari. The question which has arisen, however, came about in this way. On behalf of the Insurance officer it was sought to rely on medical opinions expressed in two previous reported decisions of an industrial injuries commissioner, in one case by an eminent surgeon who had been called in as an assessor, and in the other case by a senior radical officer of the Ministry. Both Mr. Evan Price and Dr Hayes, when they gave evidence, were questioned at length about these expressions of opinion, and Dr Hayes expressed his agreemant with the opinions expressed. The effect of the medical opinions given in these two previous cases is set out in paragraphs 13 and 14 of the decision of the deputy commissioner, and I do not think it is necessary for me to read them out. It is sufficient to observe that the opinions expressed were of a general nature, dealing generally with the causes that may lead to disc protrusion, and did not refer to the particular facts or symptoms observed in the particular cases. The learned deputy commissioner took the view that in the circumstances these medical opinions expressed in previous cases must be regarded as part of the evidence in the present case.
In paragraph 12 of his decision he said this: "Each case must, of course, be decided on its own particular facts, and I should not, as a general rule, be disposed to have any regard to the evidence given in another case, but both Mr. Evan Price and Dr Hayes were expressly asked whether they agreed with, and were cross-examined at length on, the medical evidence which is set out in detail in the decisions referred to above. That evidence may accordingly be regarded as part of the evidence in this case, and must, therefore, be considered in relation to the present claimant's claim that her incapacity resulted from an industrial accident". Then, having set in paragraphs 13 and 14 the effect of the two previous opinions,the learned deputy commissioner went on in paragraph 15 to say that he could not accept Mr. Evan Price's view "having regard to the other medical evidence". Later in the same paragraph he said that "the weight of the medical evidence" was against the conclusion that such a simple movement as merely bending forward could cause a sufficient trauma to a healthy spine as would lead to the prolapse which occurred.
The learned deputy commissioner went on in paragraph 16 to say that, even if he were to accept Mr. Evan Price's view, that still would not prove the case for the applicant; the case would, in his opinion, be left as one of equal probabilities, so that on any view the applicant's claim was bound to fall. Since paragraph 16 has been the subject of the applicant's attack in this court, I had best read it in full. "That would be enough to dispose of the case, but I may add that, even though I were to accept the contention based on Mr. Evan Price's opinion which is relied upon on behalf of the claimant, namely, that the work on which the claimant was engaged at 2.30 p. m. on the 16th April 1962 caused a physiological (or pathological) change for the worse in her condition, I should still not feel able to allow the appeal because there is, in my opinion, no greater likelihood that the claimant's incapacity was caused in the way suggested by Mr. Evan Price than that suggested by Or Hayes; that is to say, that the claimant had a partially extruded (but symptom less) disc which was converted into a completely extruded (and painful) one by a simple movement. On that view, therefore, the facts which are proved give rise to conflicting inferences of equal degree of probability so that the choice between them is a matter of conjecture. It could not, therefore, be said that the balance of probabilities points to the conclusion for which the claimant contends, and the onus of proof, which is upon her, would not be discharged".
The motion for certiorari was based on the submission that there was an error of law on the face of the record, in that paragraphs 12 to 15 of the decision showed that the learned deputycommissioner had wrongly treated as evidence in this case the medical opinions given by other unnamed doctors in other cases. On this point the Divisional Court accepted the submission put forward on behalf of the applicant, and hold that the learned deputy commissioner had erred in law in admitting these medical opinions as evidence in the present case. The learned Lord Chief justice, who delivered the leading Judgment, with which the other members of the court agreed, pointed out that paragraph 12 of the deputy commissioner's decision was ambiguous. It might mean either that the opinions expressed by the doctors in the other cases became evidence in the present case because they were adopted by Dr Hayes as part of his evidence, or alternatively that these two opinions constituted evidence from an independent source or two independent sources in the present case. Having regard to what was said in paragraph 15, the learned Lord Chief Justice thought that the deputy commissioner was admitting these medical opinions as evidence in the latter sense. This, he thought, constituted an error of law, for these two medical opinions were not, in his judgment, capable of being considered as two separate independent pieces of evidence. But, having expressed that view, the learned Lord Chief Justice went on to hold that the deputy commissioner was none the less entitled to dismiss the appeal on the ground stated in paragraph 16 of the decision.
In order to make good that point, however, the Lord Chief Justice proceeded to "edit" what the deputy commissioner had said. He quoted paragraph 16 of the decision in full, and went on as follows: "Having read that, may I say at once that clearly something is wrong in the first five lines of that paragraph, because if, as the paragraph is worded, the commissioner accepted Mr. Price's contention 'that the work on which the claimant was engaged… caused a physiological (or pathological) change for the worse in her condition', if he was so satisfied there was an end of the case. It seems to me...
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