PROVING THINGS 116: HONEST WITNESSES CAN BE WRONG: “INSIGNIFICANT EVENT” BECOMES “MAGNIFIED IN THE CLAIMANT’S MIND”

The judgment in  Pauline Carter v Kingswood Learning And Leisure Group Limited [2018] EWHC 1616 (QB) shows a scenario where a claimant can be totally honest and credible, but still be wrong.

“I am sure she is an honest person, but memory (and, most particularly, the process of re-creation of previous events) can sometimes distort the reality. Accordingly, there is a need for caution.”

 “In my judgment, the process of re-creation of a relatively insignificant event has caused the event to become magnified in the Claimant’s mind. It is perfectly understandable, not a criticism of her and not an unfamiliar scenario in the context of litigation, but it does, in my judgment, afford the explanation for the way in which the circumstances have “developed” in the case advanced.”

 

THE CASE

The claimant suffered a stroke in the days after abseiling. It was her case that the stroke was caused by the negligent operation of the abseiling and negligent supervision of the abseiling by the defendant’s instructors. Mr Justice Foskett considered the development of the claimant’s case on the facts.

THE JUDGMENT

    1. Before returning to what is suggested on behalf of the Claimant to have occurred, I should just relate how it was that she came to engage in abseiling at all that afternoon. In essence, of course, the activities were for the children, but the teachers were encouraged (and indeed wanted) to show their willingness to participate as an encouragement to the children. The Claimant had in fact abseiled a couple of times before in her late teens and early twenties and the prospect was thus not particularly daunting for her. Her colleague, Lucy Drake, was more diffident and required more attention and guidance from her instructor than the Claimant. They both went to the top of the tower together and the intention was probably that they should descend side by side because there were, in effect, two channels down which abseilers could descend as the photograph in Appendix 1 illustrates.
    2. So far as the Claimant was concerned, she was fitted with the two harnesses and the ropes were set up as described above. Her recollection is that, unlike the person depicted on the photograph in Appendix 2, she had her right hand on the safety rope, but that is a detail of no consequence. For present purposes, I will simply recount the case that is advanced in relation to the mechanics of the incident alleged to have caused the VAD without any of the surrounding matters alleged.
    3. In the Particulars of Claim it is averred that when she reached the vertical drop she was not prepared for it and the top half of her body “flopped backwards before being stopped by her safety harness.” It is averred that her head “pulled backwards exerting force through her neck.”
    4. In her first witness statement (dated 2 December 2015) she said this:
“As I went over the edge of the lead-in the slope and entered into the vertical drop, I was not prepared for the sensation at all. I remember it quite clearly because it wasn’t pleasant. I was leaning right back. I didn’t lose my balance exactly but the top half of my body suddenly flopped backwards. My head and neck jerked backwards and the harness pulled on me. I remember thinking ‘that wasn’t very nice’.”
    1. Those accounts were given a good while after the material events, though doubtless the instructions on which they were based were given at an earlier stage. Soon after her stroke occurred she was in a “locked in” situation, during which she was only able to communicate by blinking. She only acquired an ability to communicate more normally after a couple of weeks or so and even then there were difficulties. Not surprisingly, the focus of everything for a good while was her recovery and rehabilitation and not upon what happened at the Kingswood Centre. However, there is within the medical records an entry on 22 February 2013 at 16.05, and thus only about 3 weeks after the trip to the Kingswood Centre, made by Dr Wari (the Stroke Consultant) in the following terms:
No neck injury but was absailing (sic) prior
to admission – ? minor neck injury
    1. Earlier that day (at 12.15 pm) there is a note that the Claimant had been –
… provided with an “ETRAN communication board. Used to good effect – [with] eye pointing. Please use with [patient] at all times.
    1. Another untimed note that day indicates that the Claimant had “poor vocal cord [function].”
    2. Mr Simeon Maskrey QC, for the Claimant, contended in his written Closing Submissions that the entry referred to in paragraph 16 above demonstrates “that she communicated that she had injured her neck during an abseiling event during the first consultation with a doctor after she was provided with a means of communicating.” Having reviewed the medical records for that particular day, it is clear that Mr Carter was expressing concerns about the facilities for his wife in the unit where she was, particularly in relation to communication aids. He was not present at the Kingswood Centre and it follows that, though present in the hospital that day and indeed present during the consultation with Dr Wari, the only source of the information that the abseiling might have had anything to do with a “minor neck injury” was the Claimant herself. At that stage a VAD had been considered as part of the differential diagnosis, though not conclusively diagnosed, but one supposes that any neck injury might be of interest to those considering her condition.
    3. Mr Maskrey is broadly justified in the submission he makes although the words “may have” ought really to be substituted for the word “had” and the obvious comment in response is that there is no description of an event in quite the terms put forward subsequently and which are now maintained as the case against the Defendant (see paragraphs 14-15 above). Nonetheless, it is important to acknowledge the great difficulties of communication that the Claimant had at the time and that at that stage no-one was looking to blame anyone for the Claimant’s situation; but there is certainly some indication that something of potential relevance occurred during the abseiling exercise.
    4. The next occasion on which the question of a neck injury was considered in the medical context was when the cause of the stroke was under active consideration by Dr Coebergh, the Consultant Neurologist at St Peter’s Hospital, Chertsey, in February 2014. The note he made on 13 February 2014 included the following:
abseiling 1 wk before, put neck

before

fencing 1 hr later

very sick/awful

did not want to stop
rest fine
Sick & dizzy w/e cycling
Following The thumping h/ache …
    1. In a letter typed on 15 February 2014 (but doubtless dictated prior to that), the following passage appears, presumably largely based on that note and Dr Coebergh’s recollection of the meeting:
“We went through the events again that led to her stroke. On the Tuesday, she had been abseiling with her class and then she put her neck in an unusual position. She had been fencing an hour later when she felt very sick and awful but did not want to stop. She then was fine until the following weekend when she was sick and dizzy when cycling. The following Tuesday, she had a severe headache with dizziness and nausea which was worse than migraine she has known. She went to the GP where the blood pressure was higher than normal and again when not well went back on the Wednesday. On the Thursday, speech was difficult and she did not trust to get out of bed and then went by ambulance to St Peter’s and then went to intensive care.”
    1. It was at this meeting that Dr Coebergh confirmed the occurrence of the VAD and that it led to the stroke. However, Mr Angus Piper, for the Defendant, draws attention to the way the incident within the abseiling exercise was described. The Claimant was undoubtedly able to communicate better by this time (albeit not easily) and the observation is made that the description does not bear very much resemblance to the version of events now relied upon. Again, it is a fair point. Yet again, one needs to bear in mind the Claimant’s communication difficulties and the intensely worrying time (not just for herself, but her family) she and her husband will have had in the 12 months or so since her stroke.
    2. The confirmation that the stroke was caused by the VAD was a relief to the Claimant and her husband. He expressed the matter thus in his first witness statement:
“I remember what an immense relief it was to know that the risk of a recurrence was low, but it also left me questioning how the VAD occurred in the first instance. I knew that she had been on an activity holiday in the days prior to feeling ill and that she had been abseiling. That was the only time she felt she could have done anything unusual as she remembered jerking her head. When we reconstructed events with the neurologist, working back from when Pauline was admitted to hospital, it seemed quite possible that the VAD could have occurred during the abseil.”
    1. As I have indicated (see paragraph 20 above), it is possible that the association between the abseiling and some minor neck injury was considered in a tentative way at an earlier stage, but I can quite accept that it was only at this later stage that more detailed consideration was given to the issue. The effect on the family’s finances occasioned by the loss of the Claimant’s income and the need for her husband to adjust his working arrangements, at a time when the education of the children was also an issue, prompted consideration of whether there was some insurance cover that might provide some financial relief. Mr Carter explained that his focus after the meeting with Dr Coebergh in February 2014 was to see if there was any personal accident cover that might be available to provide such relief. One potential source from that perspective was the Kingswood Centre and he wrote a letter to the Defendant which was the subject of questioning and comment during the trial.
    2. His letter was dated 19 February 2015 and bears the hallmarks of some legal assistance in the drafting, but that is of no consequence for this purpose. One or two paragraphs are of potential relevance. The first is as follows:
“I believe, from information provided by Thorpe Lea School, that the residential trip was insured against personal accident under [reference given] and have been told that I need to write to this address to request details on how we proceed and what cover was in place as Kingswood is the policyholder. I would point out at this stage that the circumstances only point towards an accident under its accepted definition of a “sudden unexpected and specific event”, there is no allegation of negligence or liability on behalf of Kingswood.”
    1. The letter then simply refers to the abseiling (with no detail about what took place or any reference to the Claimant’s neck having “jerked”), to the fact that within an hour she “felt sweaty and experienced claustrophobic, dizziness, nausea and double vision” for a short while, that a few days later she was admitted to hospital having suffered a stroke which, in due course, was diagnosed as having been caused by a VAD.
    2. The letter then contains this paragraph:
“All medical investigation into the cause of the [VAD] has eliminated disease-related or congenitally inherited underlying factors. However, the timeline and events leading to her subsequent [stroke] do on balance of probability point to Mrs Carter experiencing sufficient force on her neck whilst abseiling to cause the dissection mechanically and are consistent with those reported in other cases of spontaneous vertebral dissection. There were no significant prior events that would logically lead to such an outcome. We would submit therefore that this sits within the common definition of an accident.”
    1. The letter concludes with a paragraph that explains the delay in submitting the claim and invites consideration to the next steps. The next steps would involve, it was said, the revelation of “witness statements corroborating the progression of her symptoms, statements that there was no underlying cause from her consultant neurologist and GP, and substantial reports on the level of her permanent disability from her consultant neurologist, neuro rehabilitation consultant, physiotherapist, an independent occupational therapist and her GP ….”
    2. Mr Piper made the strong point in cross-examination of Mr Carter that he had effectively excluded any suggestion of a breach of duty on the part of the Defendant. Mr Carter’s essential response was that the focus at that time was on what seemed to be a potentially productive avenue, namely, personal accident insurance and that the issue of breach of duty had not really emerged. Mr Piper’s point is not without some force, but when one considers the family situation at the time and the need to try to find some apparently uncontentious avenue for obtaining financial relief, I am not sure that the letter carries quite the significance that Mr Piper would wish to suggest that it has. Nonetheless, it does have to be observed that no detail is given about what took place during the abseiling exercise other than to suggest that the VAD was caused when the Claimant experienced “sufficient force on her neck whilst abseiling”.
    3. I have not seen the reply to that letter, but Mr Carter told me that the response was that the Kingswood Centre did not have personal accident insurance. Apparently, the local authority did and he pursued matters through them.
    4. I have not seen the Pre-Action Protocol correspondence, but I assume this took place during the latter part of 2015. I assume that the Claim Form was issued shortly before 29 January 2016. I have noted that the Particulars of Claim were dated 22 May 2016 and presumably just inside the normal 4-month period from the date of the issue of the Claim Form for the service of Particulars of Claim. I am assuming that the first allegation along the lines of that pleaded in the Particulars of Claim (see paragraph 14 above) was made during the Pre-Action Protocol period.
    5. Making due allowance for the considerable difficulties that the Claimant faced in the period after her stroke and indeed up to and including the time when her husband was pursuing issues on her behalf, it is a little surprising that the suggestion that her upper body “flopped back” suddenly in a way that she found disconcerting had not emerged earlier since she does now say that she has a vivid memory of the incident. Such records of what she had said at earlier stages about what occurred during the abseiling (see paragraphs 16 and 21 above) do not contain reference to this kind of movement.
    6. That factor would not necessarily of itself result in my rejecting the account she has given. I am sure she is an honest person, but memory (and, most particularly, the process of re-creation of previous events) can sometimes distort the reality. Accordingly, there is a need for caution.
    7. I will turn to a different way of assessing the factual situation to see if it helps. I propose to examine, as best I can, how likely it is that an incident of the type that is now described occurred.
    8. In order to do so, it is appropriate to record exactly how the case is now advanced in terms of the mechanics by which the “flopping back” occurred in a way that suggested that the instructor (here Mr Sandall) was at fault. I invited the Claimant’s team (initially against opposition from Mr Piper) to articulate clearly in some Amended Particulars of Claim how this was said to have occurred. I said that the amendments should be treated as having been made unless I was invited by Mr Piper to say that the Defendant was prejudiced in meeting the case thus advanced. In due course, he indicated that he was content that the amendments should be made and that he could meet the case.
    9. The material amendment was in these terms:
“The Claimant will aver that for her to suffer this type of fall or flop backwards it was necessary for the safety rope, attached to her chest harness, to have become slack. Because of the function of the belay device (the Italian hitch) this slack could only have formed by one of two mechanisms. Either, the Defendant’s instructor took hold of the live rope (the rope on the Claimant’s side of the Italian hitch) and pulled it, feeding surplus rope through; or, the Defendant’s instructor fed rope through the Italian hitch when the Claimant pulled on the safety rope herself. If either of these actions were undertaken whilst the Claimant’s weight was supported through the main abseil rope with the brake applied, the tension on the safety rope would be lost and the safety rope would become slack. If enough slack formed on the safety rope it would cease to be effective in restraining the Claimant from falling or flopping backwards if she was unable to adequately control her descent using the brake on the main abseil rope.”
    1. These two mechanisms are predicated on (a) the brake having been applied and (b) slack being formed on the safety rope in one of the two ways described.
    2. Evidence to support the first mechanism (with Mr Sandall pulling the live rope such that surplus rope was fed through) was recognised by Mr Maskrey as not being available. In his written Closing Submissions, the following was conceded:
“There is no evidence to suggest that the instructors pulled safety rope through themselves by pulling on the live-rope. This suggestion is not supported by the photographs taken on the day, which show the instructors with both hands on the dead rope.”
    1. This suggestion is, therefore, not pursued. For my part, I cannot understand why an instructor would ever do this in any event. However, I need say no more about that suggestion.
    2. What is suggested positively on behalf of the Claimant is as follows:
“… if the Claimant ‘flopped backwards’ as she describes, this must have been caused by slack in the safety rope, which she created herself by pulling on the safety rope whilst descending the initial slope, either unconsciously, or to support herself.”
    1. To that proposition has to be added the proviso that the brake had been applied (see paragraph 36 above).
    2. Mr Piper makes what he submits is a fundamental objection to either scenario in the circumstances of this case, namely, that there is no evidence that the Claimant had applied the brake at or immediately before the moment she says the upper half of her body flopped backwards and indeed that she has never said that she did apply the brake at that stage. Her evidence, as set out in her first witness statement, was as follows:
“I walked steadily backwards at a normal pace and went straight over the vertical edge without stopping.”
    1. She had abseiled before (albeit many years previously) and I cannot conceive of her being nervous in any way. She does say that as she “went over the edge of the lead-in the slope and entered into the vertical drop [she] was not prepared for the sensation at all” (see paragraph 15 above). That may have been so, but this is further evidence that she had not stopped at the transition by applying the brake.
    2. Not unnaturally, in a case of this nature, no court would wish to hold unfairly against them the words of someone like the Claimant (with her particular difficulties), but what she says rings true and conforms with my assessment of her as a person. She was plainly a very active person before her stroke. Even now she is very positive and determined. But I have no doubt that she would have undertaken the abseiling with confidence, designed to demonstrate to those children who did not want to take part that there was no need to worry. Applying the brake at that point does not, in my view, seem at all likely.
    3. There is, however, another dimension to this. If she had applied the brake, that is only one part of this necessary scenario for any breach of duty to arise. The other part requires her to move her hand on the safety rope in a way that pulled the safety rope towards her, thus creating some slack between her hand and the safety harness. An inevitable question is why would she have done this? The suggestion is that she may have done it either without thinking or to provide support. Mr Last said that someone might pull on whatever they were holding on to in order to give themselves stability. (I should, perhaps, note that the system operated by the Defendant encouraged the abseiler to hold on to the safety rope as a means of keeping the hand away from what Mr Sandall called a “trap hazard on the abseil rope”. Mr Last accepted that there was nothing inherently wrong with such a system.)
    4. Whether that be so or not, I find it impossible on the evidence to conclude that the Claimant did this for any of the reasons suggested. There was nothing that she did as she descended the first sloping face before the transition to prompt her to pull on the safety rope and I cannot see why she might have panicked – it would have been totally out of character. Indeed, she has never suggested that she did pull the rope. Since she does claim a fairly vivid recall of what occurred, this is telling.
    5. Furthermore, I was impressed with the evidence of Mr Sandall, in particular, and also with the evidence of Mr Holmes and Mr Fleming. None had any experience of this happening (Mr Fleming having many years’ experience) and Mr Sandall said that if anyone felt unstable the likelihood is that they would apply the brake rather than pull on the safety rope. If the brake was not applied, any person pulling on the safety rope would be pulling against their own body weight (and, incidentally, they would be doing so without the benefit of a gloved hand). But Mr Sandall also said that the instructor, who would be holding the safety rope further up, would know instantly if there was a pull on the rope and would respond by letting more rope out. That, in my judgment, is a complete answer to any suggestion that an instructor has been momentarily distracted by what his colleague may be doing with another abseiler, an accusation made against Mr Sandall on the Claimant’s behalf. Provided the abseiler was visible (and there is no question but that the Claimant would have been visible at the point of transition), an instruction not to pull on the safety rope could also be given, but it was not in this case.
    6. Whilst one cannot say that what is suggested on the Claimant’s behalf is wholly impossible, all the evidence and the factors to which I have drawn attention point to the unlikelihood of the Claimant (a) having applied the brake and then (b) having pulled on the safety rope at or about the transition. It is much more likely that she maintained a continuous descent over and through the transition and something happened that caused her neck to jerk. Whether it was the sensation of going over the transition is impossible to say, but Mr Sandall again stated convincingly that the purpose of the initial slope leading to the vertical drop was to make the exercise easier. There can be no legitimate criticism of the design of the tower and none has been made. As the photograph in Appendix 2 shows, and as emphasised above (see paragraph 10), the neck is unsupported and thus the opportunity for a neck movement exists.
    7. The net effect of this analysis is that I do not consider it has been established, on the balance of probabilities, that the there was a flopping of the upper part of the body in the way that the Claimant has described it with a consequent neck injury. I am prepared to accept unreservedly that she did experience some form of jerk to the neck, which is the way her husband has often referred to the way she has described what occurred, but not occasioned in the way it has been suggested. Mr Piper has sensibly accepted, on the balance of the evidence (and particularly in the light of Dr Cloeburgh’s letter in February 2014: see paragraph 22 above), that the Claimant is likely to have suffered a jerk to her head/neck whilst abseiling. I would add that the much earlier reference to abseiling (see paragraph 16 above) adds force to that concession. I do not think that the jerk to the neck was quite as dramatic as has now been suggested. In my judgment, the process of re-creation of a relatively insignificant event has caused the event to become magnified in the Claimant’s mind. It is perfectly understandable, not a criticism of her and not an unfamiliar scenario in the context of litigation, but it does, in my judgment, afford the explanation for the way in which the circumstances have “developed” in the case advanced.
    8. However, unless the jerk to the neck could be shown to have been occasioned as the result of some negligently permitted slack in the safety rope, no case of breach of duty can be made out. For the reasons I have given, I do not consider that it has. Given this conclusion, the nature and quality of any instructions given or not given are also irrelevant, but for the avoidance of doubt, on the evidence I heard, there was, in my view, nothing lacking in the instructions given to the Claimant: she was doing what she was expected to do.
    9. That overall conclusion does make it unnecessary to resolve the issue of whether the jerk of the neck was, more likely than not, to have been the cause of the VAD, rather than merely one possible cause. The foregoing analysis has been undertaken on the assumption that the causal link between the jerk to the neck and the VAD has been made out.
    10. For completeness, I will review that issue very briefly and indicate my conclusion had it been necessary to resolve it.I