Case No: CCRTF 99/1160/B2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TRURO COUNTY COURT
(HIS HONOUR JUDGE OVEREND)
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 6th April 2000

B e f o r e :

LORD JUSTICE PETER GIBSON
and
LORD JUSTICE HENRY

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	NEIL KNAPMAN	Claimant/Respondent	
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	KEITH CHARMAN	Defendant/Appellant	
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
Official Shorthand Writers to the Court)

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Christopher Naish Esq (instructed by Messrs Foot & Bowden for the Appellant)
Ms Patricia Hitchcock (instructed by Messrs Veitch Penny for the Respondent)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Henry:

1.		This is an appeal brought by the defendants against the order of His Honour Judge Overend, sitting at the Truro County Court, that the claimant recover damage assessed at £23,433.23 together with interest thereon of £3,820.77 for personal injuries sustained in a road traffic accident on 3rd July 1993.
2.		The accident was potentially a very serious one.  Mr Knapman was found to be blameless, and recovered 100% against the other driver, and this is an appeal brought by the defendant against the assessment of damages.
3.		The award was made up as follows:
1)	Pain and suffering		£6,000
2)	Loss of earnings		11,140
3)	Handicap in the labour market	5,000
4)	Miscellaneous losses		1,293.23
TOTAL				£23,433.23
4.		The defendants’ appeal to us is as to the quantum of the loss of earnings award, and the Smith -v- Manchester handicap in the labour market.
5.		The facts as found by the judge were as follows:  the claimant Mr Knapman was injured as a result of the defendant’s negligent driving on 3rd July 1993, the issue of liability being determined in favour of the claimant on 3rd June 1996.  At the time of the accident the claimant was aged 30 and was working as a heavy goods vehicle (HGV) driver for Horizon Farms, who later became Stonegate Farmers.  He was detained in hospital for some 12 hours after the accident in which his car had been rolled over and he had been thrown out of the vehicle.  Contemporary documents show that he is complaining of pain in his head, behind his right ear, his neck, his shoulder blades, his lower back, his left hand and his left lower leg.  X-rays revealed nothing abnormal.  A diagnosis was made of a head injury and a strained back, and analgesics were prescribed.  He had headaches for one or two days, a stiff neck for a few weeks, bruising on his hands and his arm for two or three weeks, pain on movement of his chest and bruising on his chest which lasted for a few days.  He was left with a scar on his left leg, but there was no fracture and only relatively minor discomfort from that injury.
6.		All those matters were resolved within a relatively short space of time, but on his account he was left with a soft tissue injury in his lower lumbar spine which gave him back-ache.  As a result of those injuries he was off work for some six weeks.  On return to work he found he had problems driving his HGV and so was put onto light work.  In April 1994, some six months after the accident when he was still on light work, he sustained another accident at work, a fall or twist, which resulted in an exacerbation of his back injury, which until that time had been improving quite well.
7.		As a result of the exacerbation of that injury he was off work with certificates provided by his general practitioner.  His employers meanwhile made statutory sick leave payments to him.  This continued until 27th September 1994 when they summarily dismissed him, having discovered that he had been working for a local slaughterhouse on an ad hoc basis, 22 days in all over a period of some 3½ months, starting in July and ending early in November.
8.		This incident is of importance in two ways, both highly destructive of his credit.  First, the work was very heavy work indeed, requiring considerable mobility and frequent bending and lifting.  The fact that he did this job without declaring it to his employers led to a chain of lies on his part.  First, over this period he was seen by two doctors, Dr Rogers and an orthopaedic surgeon Mr Thomas (to whom his GP had referred him).  He lied to both, saying he was unable to undertake ordinary domestic and gardening chores over this period.  And even when his ex-employers had detected what he was doing, he clearly did not tell his legal advisors, nor did he tell the two specialists who gave evidence, namely Mr Bulman, instructed by the claimant who he saw in June 1995, nor Mr Evans, instructed by the defendants whom he saw in November 1995.  Over this period he showed himself willing to lie to the doctors, to lie to the court in interrogatories that he filed, and then to Mr Bulman and Mr Evans.  The full extent of his deceit over this period only became apparent when he had to file an affidavit of 15th January 1998 making clear that he had had employment in the local abattoir, but lying as to the nature of that employment, saying that it involved “... no actual physical work ...”.  Subsequently he had to file an affidavit correcting the lies in his original affidavit, which he did only in June 1998.  Before that time he continued to deceive the doctors.  I will return to the judge’s finding as to those lies having completed the outline of the facts.
9.		He then, in January 1995, took up agricultural work, and he continued doing full-time agricultural work from then until trial, 4½ years later.  First, for over three years he worked in a piggery, then he spent five months as a relief milker, and then came the first year of his present job, as a farm labourer.  So he was engaged in fairly heavy work over all that period, but nothing like as demanding as his 22 days at the abattoir.
10.		Of particular importance was his examination by the defendant’s medical expert, Mr Evans, on 9th November 1995.  Mr Evans naturally did not know the claimant had worked at the abattoir.  Nor had he met him before.  His prospective loss of earnings claim was founded on an inability to continue to work as an HGV driver.  The account he gave Mr Evans was that he was not sure he could undertake that task.  The difficulty he saw was in sitting 4½ hours at a time at the wheel.  He told Mr Evans that he had lost his job “... because of his back ...”, and so Mr Evans not unreasonably took the view that his employers had dismissed him because of his inability to do his driving job.  He concluded his summary and opinion as follows:
“There is one episode of back pain in the general practice notes in 1988 of doubtful relevance to his present symptoms.  His present condition is of residual relatively minor aching in the back.  He can work a full day.  He takes no pain killing tablets.  He has resumed work on a porch for his house.  His driving ability is rather limited by back pain and the symptoms are an irritation to him.
He presents his case in a perfectly straightforward manner.  I believe that his complaints can be taken at face value and there are no inappropriate signs.
The likelihood is of further improvement with his back.  The symptoms will be activity-related.  I do not feel that any particular form of treatment will be of benefit.  He will need to exercise some caution with repetitive strenuous activity and will probably experience aching in the back on over use.  I doubt if there will be a significant restriction of function - certainly at present he is able to undertake all the tasks that he wishes.  I would not expect any specific late complication or degenerative change.
At the time of injury he was working as a long-distance lorry driver.  He had to spend 4½ hours at the wheel at a time.  I rather doubt whether he would be able to resume this.  I believe he would be able to undertake driving jobs for shorter distances and he remains capable of the majority of other types of work including quite strenuous jobs such as the one he does now.
You may care to regard this report as final.”
11.		In November 1998 Mr Evans was first told the truth about why Mr Knapman had lost his job.  His letter in response sent to the defendant’s solicitors reads as follows:
“Thank you for your letter of 19.11.98 enclosing Mr Knapman’s voluntary affidavit and statements.  These show that he has knowingly provided incorrect and misleading answers to the questions that have been asked.  In particular he told me at the time of my 9.11.95 medical report ... that he had lost his job because of his back whereas in reality he was dismissed for misconduct.  He has provided statements to the effect that in 1994 he did some cash in hand work checking on sheep, but now states that this was not the case and that instead he had been given money by a friend who had since died. [These statements were also apparently lies.]
These developments make it difficult to know when to believe Mr Knapman.  In cases of back pain the assessment is largely dependent on interpretation of the history that is given.  Physical examination is less helpful.  Sometimes X-rays or an MRI scan are helpful in pinpointing a cause of back pain, but in this case they are normal.  In essence, therefore, an orthopaedic surgeon would be relying primarily on his history in assessing the severity of symptoms and that history now has to be regarded as a potentially unreliable source of information.
When I saw Mr Knapman in 1995 I felt that he presented his case in a perfectly straightforward manner.  The recent developments have caused me to change that view.  I would therefore now conclude that I am unable to say whether Mr Knapman had sufficient symptoms from his back when I examined him in 1995.
I have not seen him since and I therefore have no information about the pattern of events in respect of his back over the last three years.”
12.	This presented the judge with great problems as to the credibility of Mr Knapman and his case.  The judge summarised the whole history of his deception:  he lied to his employers, to Dr Rogers, to Mr Thomas, to the court in these proceedings, including answering interrogatories, to Mr Evans, to Mr Bulman (his own expert medical witness) and in his various affidavits to the court.  The judge concluded:
“I have to say that unusually in cases of this sort I am unable to accept a single word said by Mr Knapman.  He is an inveterate liar and wholly unaffected by taking the oath.  Secondly, to the extent that the consultants on both sides have based any opinion on the history as recounted by Mr Knapman, then in my judgment those opinions are based upon an unsure and uncertain foundation.  I am unable therefore to agree with Mr Bulman, who says that his opinion was not changed despite his presence in court during Mr Naish’s illuminating cross-examination of Mr Knapman.  Indeed, the view I formed was that in some cases Mr Bulman was almost an apologist for Mr Knapman, making forensic points ...  In my judgment, Mr Evans was more objective than Mr Bulman and where the two differ I prefer the evidence of Mr Evans.”
13.		The judge’s findings on credibility are unassailable, and we must take the primary facts as found by him.  There are two live issues in this appeal:  first, prospective loss of earnings;  and second, handicap in the labour market.
14.		The prospective loss of earnings claim is put on the basis of his being unable and remaining unfit to drive an HGV (the only basis it could be put on, as Mr Knapman has shown, by the unbroken sequence of agricultural jobs he has had over the last five years, that he is fit for most things).  The question is whether he was, and for how long he has been, fit for HGV driving.  The nature of his alleged unfitness is curious.  Today’s modern HGV is light and easy and comfortable to drive.  Those who find the job too difficult usually have trouble with the loading and unloading, the securing of loads and the climbing up and down into the cab.  The abattoir work showed that, albeit on a sporadic not daily basis, Mr Knapman could do that very heavy work.  His trouble, he claimed, was that he could not sit for any length of time, certainly not the 4½ hours that HGV driving would entail.  Mr Evans was to tell the court that difficulty in lifting and sitting almost always went together.  He said he was “... a little surprised ...” by the alleged difficulty in sitting.  Accordingly, the defendants alleged that Mr Knapman’s loss of claim (based on his not being fit to drive an HGV) ended on 21st July 1994 - being his first day doing the heavy bending, lifting and twisting work at the abattoir.  Their case was that from that day he was fit to drive.
15.		The judge did not agree.  His reasoning was clear.  There was effectively no evidence that Mr Knapman had had any trouble with his back before the accident.  The doctors were agreed on that.  They were also agreed that he had had trouble with his back since.  Though a liar, the medical evidence did not suggest that he was a malingerer.  Having comprehensively found that he did not accept a word that Mr Knapman said, the judge then continued:
“That of course is not the end of the claim by any means for there is before the court other evidence not emanating from the claimant upon which the court can act.  It is agreed that the claimant did suffer a lower back, soft tissue injury which produced symptoms over a period of time which resulted in him having physiotherapy, which required him to be examined under an MRI scan, and that was sufficiently severe for him to be referred to a pain clinic.  The records show that he visited his general practitioner on and off about back pain until about February 1997, by which time he has been working at the piggery for some two years.  The view that I have formed from that evidence is that so long as the claimant was going to see his general practitioner, in the course of which he was referred to a consultant orthopaedic surgeon, Mr Thomas, it is likely that during that period he would have been unable to drive a heavy goods vehicle.  However, I am not persuaded that that was the case thereafter.  It is true there may be, probably are, continuing mild symptoms which may continue indefinitely and which may on occasion flare up.  That is based on the evidence of Mr Bulman.  But in my judgment, those continuing symptoms and occasional flare-ups would be unlikely to prevent him from driving a heavy goods vehicle.”
16.		The appellants attacked that conclusion.  Their case was if the claimant could do the heavy work he did at the abattoir, then he could drive heavy goods vehicles, and the judge should so have found.  They correctly submitted that the burden of proof was on him to show that, though fit for very strenuous work, he was not fit to drive.  They questioned the evidence that he could not sit for 4½ hours, pointing out how Mr Evans had been “... a little surprised ...” by the suggestion, and how Mr Bulman would not go further than to say that it was possible that he could carry out such work yet not drive - but would not say it was probable.  They relied on that and Mr Evans’ “surprise” as an evidential platform from which the judge could and should properly infer that Mr Knapman was fit to drive an HGV, and so end the period of his claim with his commencing work at the abattoir.
17.		In my judgment there was evidence justifying Judge Overend’s reaching the conclusion he did.  To link the unfitness to a time when the claimant’s back was giving trouble was clearly an inference that the judge was entitled to make.  He was also entitled to take into account the fact that Mr Evans, his preferred medical witness, was not prepared to find categorically that Mr Knapman could have returned to HGV driving by July 1994.
18.		Mr Evans, like many good witnesses, was cautious.  Of the work at the abattoir, compared to the work at the piggery, he said:
“I guess that the work at [the abattoir] was more physically demanding than the piggery work.  The fact that he took it on and was able to do it indicates that his back I don’t think could have been particularly troublesome, but he had days in between, maybe weeks in between, where he could rest up and not work, and no doubt that is part of the reason why he is able to do it.  So, yes, there is a distinction to be drawn.  The [abattoir] job was more strenuous but it was in bouts rather than a continual job.  Nonetheless, if his back had been a trouble to him I can’t believe that he would have been able to load 1,000 skins in a morning up to that sort of level.”
19.		That answer had been given in cross-examination.  Earlier he had been asked the direct question in chief:
“Q.	Mr Bulman says that there is a big difference between sitting still in the same position in your lorry and the moving about described in the [abattoir] work.  What is your view of that?
A.	Most of the people with back pain who tell me that they cannot sit for long periods of time also cannot lift.  I mean, lifting and difficulty sitting or standing in one position almost always go together.  I agree, Mr Knapman probably has got some problem with his back and it aches from time to time with strenuous activity but I would be surprised if it prevented him sitting for reasonable lengths of time.  Whether it prevents four hours, I do not know.  It is difficult to say, but I am a little surprised that that is the case given the physical capacities that he has.”
20.		It was then pointed out to him that he was doing a farm labourer’s job which was relatively strenuous and the final question in examination in chief was whether that altered the views previously expressed about whether he could drive an HGV.  The answer was:
“A.	I think the work he is doing now is consistent with the work he was doing in 1994 and subsequently.  I mean, he is capable of a strenuous job and the same views apply.  It is surprising that he cannot sit for long periods of time to work as a lorry driver.”
Then in cross-examination he was asked the question:
“Q.	If one is talking about his ability to do long-distance driving, to sit for 4½ hours, have you had any information that is now inconsistent with that suggestion.  You have told us that you have not heard any evidence that he cannot sit for that time?
A.	I haven’t heard anything specific in terms of sitting for long periods, but I would find it rather unusual for someone to be able to do physically demanding manual work and not be able to sitting satisfactorily.  Most of the people who have back trouble and who can’t do driving jobs, the difficulty is the clambering around and the unloading rather than the driving itself, because lorry driving isn’t what it used to be and the controls are not difficult to operate or physically demanding.  The seat can be adjusted, they are comfortable, they are often air-conditioned, I find that rather unusual.”
21.		The judge had to reach a decision of fact.  It was clearly very finely balanced.  It was one of those decisions which could “reasonably” have been decided either way.  The basic structure of the decision (that the accident caused the back pains;  the back pains resulted in the inability to drive;  and the best evidence of the duration of the inability to drive is the span of his having to go to the doctor for his back recognises and deals with the problem of a claimant who has been found to be a liar, but has not been found to be a malingerer) is both rational and fair, and within the wide margin of decision entrusted to the judge of fact.  He has the best opportunity to get the answer to difficult questions right.  Here his approach was sound, and I am not persuaded that his decision was wrong.
22.		Having found that the cut-off date for the claimant’s loss of earnings as an HGV driver was his last visit to his GP complaining of back pain, the next problem was when that was.  This problem arose because of the illegibility of the GP’s notes.  There was a reference to low back pain in an entry between 30th April 1996 and 11th July 1997.  Independent records show that Mr Knapman was receiving physio-therapy at least until 6th December 1996.  The following exchange then took place:
“JUDGE OVEREND.	As the entry before is 30th April 1996 and the entry after it is 11th July 1997, is not the fair thing to do to interpret it as 15th February 1997?
MS HITCHCOCK.	I would be happy with that.
JUDGE OVEREND.	I cannot read it.  Can you read it?
MR NAISH.		I would have thought it does not look like a ‘2’, it looks more like an ‘8’ but ...
JUDGE OVEREND.	I chose February because it is not a ‘1’, is it?
MS HITCHCOCK.	It could be a ‘12’.  It could be a number of things, your Honour.  I am happy with February.
MR NAISH.		It is something between those two dates.  I cannot do better than that.
JUDGE OVEREND.	If it is relevant, halfway between those two dates would be fair, would it not?
MS HITCHCOCK.	I would not demur from that approach.
JUDGE OVEREND.	So I will say ‘15, query 2, ‘97’.”
23.		The judge clearly thought that that was the end of the matter, that this issue had been disposed of by agreeing the date.  His judgment refers to this date as February 1997 throughout, and does not say how he had reached that date.  He clearly understood it as being agreed.  Further confirmation of this occurred after judgment:
“MR NAISH.	I was simply going to say, has your Honour stated the date in February 1997?  did your Honour say until the end of February 1997 or until the last date ...
JUDGE OVEREND.	I think we have all got the date.  It is the only date that we have got.
MS HITCHCOCK.	It was the 15th, I believe.
JUDGE OVEREND.	The 15th, was it?
MR NAISH.		The calculation will go on until the 15th.
JUDGE OVEREND.	Yes, that will do.
MR NAISH.		We will plough on with that then.”
24.		Now Mr Naish by his Notice of Appeal seeks to alter that date but submitting that there is no evidence supporting it, despite having acquiesced (to put it no higher) with the judge’s suggestion of what would be fair.  Because he did not take the point, we do not know how the judge would have reacted to the suggestion that the date remained a live issue.
25.		But the judge was entitled under the Civil Procedure Rules (CPR) to take the view that it would be disproportionate to have the precise date proved, that he should further the over-riding objective by helping the parties to settle this small part of the case by encouraging them to co-operate with each other (Rule 1.4(2)) and that he had succeeded in this task.  If Mr Naish had wished to preserve what would, prior to the CPR, have been his client’s right to put the claimant strictly to proof, he should have said so then.  Then the judge and/or claimant would have decided how to proceed.  The court’s general powers of case management include power to “... exclude an issue from consideration” (Rule 3.1(2)).  The judge could either have gone that route, or given the claimant time to prove that date (if he regarded it as proportionate).
26.		Lastly, handicap in the labour market.  Here the judge gave a modest award of £5,000 - or not much more than six months wages.  The defence had kept the figure low on the basis of the client’s excellent work record.  He was, however, on the judge’s finding left with “... continuing, albeit minor, symptoms which may put him at a disadvantage in the labour market should he lose his job in future” - with about 25 years of his working life left that cannot conceivably be said to be manifestly excessive.  A labourer with a bad back is more vulnerable on the labour market than one with a sound back.  This modest award was justified.
27.		Mr Naish also took a point on the burden of proof.  Naturally, Mr Knapman had to give credit for all his earnings from the date of the accident until 15th November 1997.  He was asked whether he had accounted for all such earnings, and replied he had.  But as his evidence should not be accepted, so the judge should have found there to be undeclared earnings.  This is a bad point.  The evidential burden was on the appellants to show that there was sufficient evidence to raise this issue.  They failed to discharge that burden:  they simply asked the question, and got the answer summarised above.
28.		Accordingly, in my judgment, this appeal should be dismissed.
Lord Justice Peter Gibson
29.	I agree.
Order: Appeal dismissed.