Case No: B3/08/1372
Neutral Citation Number: [2008] EWCA Civ 1641
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT 
(HIS HONOUR JUDGE LANGAN QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 9th December 2008

Before:
LORD JUSTICE WALL
LORD JUSTICE MAURICE KAY
and
LORD JUSTICE MOSES

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Between:

	CAMPBELL
	Appellant	
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UK COAL	
Respondent	

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(DAR Transcript of 
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Mr I Bowley (instructed by Raleys) appeared on behalf of the Appellant.

Mr M Bowerman (instructed by Nabarro) appeared on behalf of the Respondent.
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Judgment
Lord Justice Moses:

1.	On 30 April 2003 the appellant suffered an accident at work.  The details of how he suffered that accident are of only limited relevance to the issue on the appeal, nor is it relevant that the accident was as a result of the negligence of his employers.  It suffices to say that he slipped due to the negligence of his employers whilst working underground in a pumping station.  He tried to save himself by grabbing the safety valve with his left hand.  This broke his fall but caused severe pain in his left shoulder.  It is his left shoulder that formed the subject matter of one of the important issues that the judge had to determine at trial and forms the focus of this appeal.

2.	Negligence was admitted and the issue before the judge, HHJ Langan QC, at the Leeds County Court related to the consequences of the appellant’s fall.  The appellant had, it was accepted, suffered from a ligamentous lesion known as a “SLAP lesion”.  SLAP is an acronym for “Superior Labrum from Anterior to Posterior” and describes the tearing of the biceps tendon from the top of the labrum, which is the top part of the spherical circumference of the socket into which the ball of the shoulder fits.  It was a type 2 lesion, in other words one which separated that tendon and the labrum from the bed of the socket known as the glenoid fossa.

3.	The issue before the judge was whether that undisputed lesion could be attributed to the negligence of this appellant’s employers or was as a result of a pre-existing degenerative change in the left shoulder.  The judge concluded, after hearing orthopaedic experts called on behalf of both the appellant and his employer, that the symptoms of pain and disability from which the appellant suffered had lasted only some six weeks, but otherwise continuing symptoms were due to degenerative changes that had led to the lesion.  

4.	This appeal, advanced on behalf of the appellant against his employer, turns on whether the appellant can persuade this court that the findings of fact and conclusions which the judge drew were outwith the range of reasonable conclusions, exercising, as it does, the traditional caution which it deploys when faced with a challenge to the judge’s findings of fact.  

5.	In order to analyse the reasons which led to the judge reaching that conclusion, it is necessary to set out the chronology which details both the accident and its consequences and also symptoms of which the appellant had complained before the accident happened.  He was at the time of the trial, on 2 May 2008, 53, but he was only 25 when he suffered the first symptoms to his left shoulder.  Pre-accident medical notes revealed that both on 18 and 21 November 1980 the appellant had suffered what was described as an “impingement” or as it is also known “supraspinatus tendonitis” which describes inflammation of part of the rotator cuff and of the bursa -- that is, the sack of fluid designed to prevent friction between bone and ligament.  As I have said, he suffered that left shoulder pain as a young man and it is of no little significance that, when asked about so early a symptom, the orthopaedic surgeon, Mr Venkateswaran (known if he will forgive me as Mr Venkat), accepted that that pain suffered in the early ’80s would be attributable to degeneration of the condition of the left shoulder.  

6.	Some 14 years later, he reported suffering from similar symptoms to the left shoulder, this time related to the rotator cuff, on both 4 October 1994 and 1 December 1995.  There was also a report of pain to the shoulder in July 1996, and he reported again a painful left shoulder in June 1998.  But from that time on, said the appellant, until a time very shortly before the accident on 30 April 2003, a period of some five years, the left shoulder was symptom free.  

7.	The judge (in his judgment at paragraph 49) concluded that there were other references, having noted most of those reports which I have just related. He described them as being but few of many entries on which the orthopaedic surgeon called on behalf of the employer (respondent in this appeal) relied.  He said:

“In June 1998 there was a reference to a painful left shoulder and so on”

8.	Mr Bowley, on behalf of the appellant, complains that there were not in fact other references, although there certainly do seem to be some medical notes of pain in the region of the neck radiating up from the elbow about which the appellant also complained.  But since the judge does not appear to have founded himself upon further reports during that period, but rather to have concentrated on the period after the accident, in my view any exaggeration of the number of reports does not undermine the conclusion of the judge.  

9.	Of more importance are the incidents around about the time of the appellant’s accident.  He suffered a fall causing symptoms to his left shoulder on 28 March 2003 and went to his general practitioner and reported the pain on two occasions, 3 April and 15 April 2003.  His employer contended that his subsequent symptoms may have been due to that non-tortious incident but the judge rejected that as a theory and there is no cross-appeal relying upon it.  The appellant appears to have recovered by the time of his accident on 30April 2003.

10.	I have already described the accident as found by the judge.  The only importance of its detail is that the orthopaedic surgeon called on behalf of the appellant, Mr Venkat, did describe the mechanism of the fall as being typical of one where a traumatic cause for the SLAP tear or lesion would be expected.  

11.	Of greater significance for the purposes of the appeal, however, is what happened immediately after.  It appears that the appellant did not come straight off work, although he noticed substantial pain and difficulty in manoeuvring his left shoulder at the time, but did not report that to his doctor until 9 May 2003 -- in other words, some nine days later.  This proved to be of significance at the trial since Mr Fagg, the orthopaedic surgeon called on behalf of the employer, thought that that was not what he would have expected had that accident been a traumatic cause of the shoulder lesion.  He said that if that fall had been the cause of what he described as an acute SLAP tear, he would have expected very great pain for at least a few days and would have expected the appellant not to have been working and to have seen his general practitioner much earlier than he did.  Mr Venkat, called by the appellant, disagreed as to whether one would expect so severe symptoms immediately.

12.	The appellant did, however, complain on 9 May 2003 and reported further symptoms, for which he received an injection about a month later on 6 June, when it was recorded that he was suffering from supraspinatus tendonitis or as it was called “impingement”. 

13.	There then followed a period from 6 June 2003 up to 19 February 2004 that was described by the employers as being of significance in deciding the correct diagnosis and cause of the subsequent symptoms.  There was a factual dispute about whether the appellant was working during that period.  He contended -- backed up with certain medical notes that seemed to support it -- that he had been off work from July 2003 until November 2003 when he returned to light duties.  The judge, however, found that he had been off work only about four weeks and had then returned to light duties.  He had reported other symptoms of pain, both to his doctor and to the medical centre at work, but during that period had not complained of pain to his left shoulder.  The appellant himself said that he was suffering continuous pain but because symptoms of pain were worse in other parts of his musculature and skeleton they had a more significant effect upon him.  It was that period of comparative absence of symptoms to the left shoulder that Mr Fagg, the expert called on behalf of the employer, found of diagnostic significance.

14.	The appellant did suffer from further shoulder problems, which he reported on 19 February 2004.  There were further reports of such pain on 15 June and 2 August until he was seen by surgeons in October 2004 and again on 25 February 2005 and 28 May 2005.  On that occasion he was seen by an orthopaedic surgeon, a Mr Binns, who was called as an expert on behalf of the claimant, but the judge found that his evidence did not add to the expert evidence given, which was the dispute which he had to determine.  That forms, as I shall note, a further ground of complaint on behalf of the appellant.

15.	13 August 2005 was the date when Mr Venkat first had the opportunity, by means of an arthroscopy, to examine the socket of the left shoulder.  He on that occasion diagnosed its type 2 SLAP lesion and, importantly for determining its cause, observed as he noted it that the socket, as far as he could see, was in pristine condition without degenerative changes.  That was of significance for him in determining that the SLAP was as a result of the accident on 30 April.  He saw the appellant again on 26 September and 22 November 2005, and a further surgeon acting under him on 17 February 2006 reported that as a result of the repair of the lesion the appellant was pleased with the outcome and had virtually recovered. 

16.	But it was at about that time that the appellant suffered a further injury to his left shoulder when driving a truck where the clutch stuck and he was compelled to use considerable force to shift the gear.  This caused or exacerbated, so he said, a further lesion to the shoulder, which required on 15 January 2007 a second operation and repair.  On that occasion both doctors agreed that the signs of degenerative changes could be seen.  Mr Venkat attributed that to degenerative changes that had grown since he had first seen the pristine condition of the socket back in August 2005.  

17.	In order to determine whether the continuing symptoms and the need for repair and certainly what was said to be the further exacerbation in 2006 could be attributed to the employer’s negligence, the judge therefore had to decide to what the lesion could be attributed.  He concluded that it should be attributed to the degenerative changes.  He founded himself on what he described as the post-accident history.  He said: 

“I have found as a matter of fact that the claimant was at work, although he was probably on lighter work than usual, in the late summer or autumn of 2003.  This seems to me to remove most of the premise on which Mr Venkateswaran’s analysis of the post-accident period rests.  Shoulder problems do not figure in any of the medical records between 6 June 2003 and 19 February 2004.  This is a lengthy period and, like Mr Fagg, I find it difficult to accept that, if a SLAP lesion had occurred in April 2003, the claimant would have been relatively symptom-free over this period.”

He then points out that the appellant was suffering some shoulder pain over this period but not to the extent that he claimed and he continues:

“It seems to me that if, during the period which I am considering, the claimant had been suffering from the level of pain which, according to Mr Fagg, might be expected to follow from an acute traumatic event, he would have mentioned it.  In my judgment, the more probable of the theories which have been advanced is that put forward by Mr Fagg, namely, that there was an underlying constitutional problem, which was aggravated by the accident in April 2003 and was alleviated by the Kenalog injection on 6 June.”

It was in that passage that he rejected the appellant’s contentions as to causation.

18.	In attacking that passage, Mr Bowley starts by contrasting the period before the accident, when there had been no symptoms for five years even though the appellant was carrying out heavy work, with the period after the accident, when undoubtedly there were some symptoms progressing to the severe shoulder problems on 19 February 2004, even though, as the judge found, the appellant was only doing light work and, on occasion, with assistance.  That is certainly true, but the judge was in my view entitled to focus upon the evidence of Mr Fagg.  

19.	Firstly, Mr Fagg had expected far greater symptoms had trauma been the cause of the lesion immediately following the accident.  Although Mr Venkat disputed that expectation, it was open to the judge to rely upon that evidence of Mr Fagg.  Mr Fagg had described a comparatively symptom-free period between June 2003 and February 2004 as that which he would expect following degenerative changes.  He never resiled from that view.  That view is challenged by Mr Bowley, who could certainly point in passages in the transcript to the general thrust of Mr Fagg’s evidence that symptoms from the SLAP might not be such as to cause continuous pain but to be episodic.  That, he contended, was similar to the views of Mr Venkat and ought to have led the judge to the conclusion that the absence of symptoms was of no diagnostic significance in determining the cause of the lesion.  Nonetheless the judge, in my view, was entitled to look at that period as a whole contrasted with what Mr Fagg would have expected had there been the acute pain following a trauma, and to note the progression of pain, which reared its head again in February 2004, and in the context of the acceptance of early degenerative changes back in 1980.  In my view the attempt by Mr Bowley to persuade us that it was not open to the judge to prefer the evidence of Mr Fagg or to demonstrate that Mr Fagg’s evidence did not support the conclusion fails.  

20.	Mr Bowley also contended that, since on any view the appellant suffered from a lesion to his left shoulder, whether the symptoms were as severe as the appellant had claimed or not or whether they were merely episodic was not of assistance in determining whether they were due to the trauma.  But Mr Fagg had been clear, both in his written report and in his oral evidence, that he regarded the history of pain from the time of the accident up to February 2004 as more suggestive of degenerative changes in the ebb and flow of symptoms than if the SLAP had been due to trauma.  In those circumstances, as it seems to me the judge was entitled to found his conclusion upon the post-accident history which he identified.

21.	Mr Bowley turned to further features of the evidence, in particular the description as to how it had occurred and the absence of signs of degenerative changes on the first arthroscopy in August 2005.  But he, with his customary frankness, accepted that if he was not able to persuade the court that the judge was not entitled to found his conclusions on the post-accident history, these further arguments were unlikely to prevail.  Whilst it is true that the mechanism was consistent with a SLAP caused by a trauma, it also has to be set against the evidence to which I have already referred from Mr Fagg as to the greater pain that might have been expected had the accident been the cause of the lesion.

22.	So far as the arthroscopy indications of absence of degeneration are concerned, the judge was entitled to favour Mr Fagg’s evidence that it would be difficult to see degenerative signs within the socket.

23.	In those circumstances, as it seems to me this court must exercise its customary caution before interfering with the factual findings of the judge.  A careful analysis of the evidence advanced by Mr Bowley serves, in my view, merely to confirm that there was a proper basis upon which the judge could found his conclusions, and in those circumstances I would dismiss this appeal.

Lord Justice Maurice Kay:  

24.	I agree.  In paragraph 50 of the judgment the judge referring to the evidence of Mr Fagg states that he had pointed out that: 

“after 30 April 2003, the claimant went on working, which suggested that the accident had not caused any significant pain or disability.  He did not go to his GP for ten days.”

That passage is a paraphrase of a slightly longer passage of evidence at page 108 of the transcript where Mr Fagg, speaking of the accident of 30 April, said:

“the reason why I think it is not…the cause of the problem is that it does not seem to cause Mr Campbell any significant initial disability.  He continues to work, I understand, and has not seen his GP until seven, nine, ten days later.  If that was the cause of the acute slap tear, then that would be very painful, at least for a few days, and I would have expected Mr Campbell to have not been working and to have seen his GP.”

Plainly the judge accepted that evidence.  In my judgment it underwrites the lengthy passage in paragraph 53 to which my Lord has referred.

25.	In the circumstances I am satisfied that the judge was entitled to conclude as he did and I too would dismiss the appeal.

Lord Justice Wall: 

26.	I also agree.  As the judge himself commented, this was a finely balanced case.  It is, however, of the essence of such a case that it can go either way.  Had either I or either of my Lords been the judge at first instance, we might have decided the case the other way.  But that of course is not the test.  As my Lords have pointed out, the test is whether or not there was material upon which the judge could properly have reached the conclusion which he did and, as my Lord, Moses LJ, has demonstrated, the judge’s conclusion was properly based on the acceptance of the evidence of Mr Fagg and was thus a conclusion properly open to him.  In my judgment Mr Bowley has argued this appeal as well it could be argued and has said everything that could be said in support of the appeal.  Nothing he has said, however, could overcome the essential point which I have identified and for these essential reasons, like my Lords, I would dismiss this appeal.

Order: Appeal dismissed