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Goodman v Faber Prest Steel, Court of Appeal, 5 March 2013

15 April 2013
The issues:

Road traffic – Quantum – medical records

The facts:

Mr Goodman had a road traffic accident on 26th February 2004. Liability was admitted, subject to a discount of one third for contributory negligence. Mr Goodman said that he suffered from pain in both knees, his lower back and his neck particularly when driving as a result of the accident. The defendant argued that Mr Goodman had suffered no significant injury at all as a result of the accident. The matter came before the judge who awarded the claimant damages in the sum of £69,478. Both parties relied on orthopaedic evidence from consultant orthopaedic surgeons. The judge who heard the case found Mr Goodman to be an entirely credible witness. She had no hesitation in accepting his evidence. The defendant, however relied on Mr Goodman’s medical history both before and after the accident and on a statement that he had made in an email sent to his employer, Procter and Gamble, in May 2006 that he had suffered no pain during the month or so after the accident while he was waiting for his own car to be repaired.

The medical records showed that the first occasion on which he raised the accident was when he went to see his firm’s occupational health department. He said then that he was having difficulty with his current car due to an injury to his left knee following the accident three months earlier, and also of backache resulting from the driving position of the car he was then using. The first reference to his GP about pain in his knees or back was not until 20 May 2004 when he reported pain in his left knee attributable to the accident. In June he went to his doctor for an unrelated complaint and said nothing about pain in his knees or back. On 22 July he went to his doctor again complaining for the first time of lower back pain on the left side and of a tender left knee. There was no reference to the GP of any pain in the leg until November 2004. In November 2005 an orthopaedic surgeon who examined Mr Goodman for clinical reasons reported an eight month history of progressive pain and increasing stiffness in both knees and diagnosed early signs of degenerative changes.

When the claimant saw Professor Porter for an ergonomic assessment at the behest of his employer he told Professor Porter he had first had driving-related pain in May 2004 and when he referred to the accident in February of that year said that he had not suffered any immediate problems before returning to work in May. For the claimant Mr Coombes, the orthopaedic surgeon instructed by his solicitors, said that Mr Goodman’s symptoms were attributable to the accident. Mr Hay, instructed for the defendant, took the view that none of the symptoms were attributable to the accident partly because there was no record of him having suffered any symptoms in the immediate period after it occurred. Both Mr Coombes and Mr Hay agreed that if Mr Goodman had had any significant injuries to the knees, back or neck he would almost certainly have suffered painful symptoms in the days immediately afterwards. The other evidence relied on by the defendant was the email sent to his line manager. In that email he had said, amongst other things, that he had used a Volvo for a month after the accident and whilst driving that car he had not noticed any pain.

In cross-examination at trial the claimant said that what he had said in the email was not true and that he had suffered pain in his knees and back immediately after the accident but he could not explain why he had not said so. The judge accepted Mr Goodman’s evidence that he had suffered painful symptoms in his knees and back immediately after the accident and because she preferred the opinion of Mr Coombes to that of Mr Hay.

The decision:

The only evidence that Mr Goodman had pain in his knees and his back immediately after the accident came from him. Although emphasis is properly placed on the advantage given to the trial judge of seeing and hearing a witness give evidence it was generally acknowledged it was difficult even for experienced judges to decide by reference to the witness’s demeanour whether his evidence was reliable. Memory can play tricks and even a confident witness believing in his own recollection might be mistaken. The court therefore looked to other evidence to see to what extent it supported or undermined what the witness said. For that purpose contemporary documents often provided a valuable guide to the truth. The judge had the medical history before her. She appeared to have accepted Mr Goodman’s assertions as to his pain. The Court of Appeal was left with the clear impression that the judge was swayed by Mr Goodman’s performance in the witness box into disregarding the important documentary evidence bearing on what had become the central question in the case. It was open to her to prefer what he had said in the witness box but in that case she had to deal with the documentary evidence and explain why Mr Goodman’s oral evidence was to be preferred. The judge’s decision could not be allowed to stand. Appeal allowed: matter remitted for re-hearing before a different judge.

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