Case No. HQ12X01213

17.The first issue to address on this aspect is the question of the Claimant’s medical condition prior to the accident. The Claimant in her oral evidence repeatedly expressed the view that she did not believe that her pre-accident history of neck pain was significant. As a result she was taken through that history as revealed in her medical records and identified by Mr Marks in his first report dated 15th November 2007 (page 178 at pages 182 and following) in some detail. During the course of that cross-examination it’s fair to say, as counsel for the Defendant submitted, that the Claimant constantly appeared to downplay the significance of the entries; by way of example only the March 1993 reference was explained on the basis that it was a one-off, short-lived episode and resulted from one of numerous assaults by an ex-partner. The April 1997 entry was explained as the result of a frozen shoulder whilst the June/July 2001 entries were explained as being the result of the use of an inappropriate chair. The Claimant also sought to explain various references to neck problems recorded in 2002 as being the result of a wrist injury but this is at odds with the contents of the letter of 6th September 2002 to be found in the supplementary bundle at page A18.18.It is also clear that the Claimant also appeared to down-play the significance of her pre-accident history when she was seen by the two medical experts for the purposes of this litigation. In July 2007 she was seen and examined by Mr Kirkpatrick who recorded the following under the heading Past Medical History at page 168 in the bundle:“(i) besides glandular fever and the wrist injury Mrs Lay denied any other relevant medical issues.(ii) She had one episode of sciatica in May 2001, which required one week off work. This followed a long sitting episode at her desk. She did not suffer any recurrence.(iii) There was a suggestion of mild scoliosis as a child for which she received a back support. There was no corrective surgery and the problem resolved itself.”19.Her explanation, when challenged on these issues, was that she told Mr Kirkpatrick about what she believed to be the significant issues; all that she felt was relevant.20.When she saw Mr Marks on the 15th November 2007 he recorded what was reported to him at page 181 in the bundle, under the heading Past Medical History as follows: “She reports herself as otherwise fit and well. As noted previously Mrs Lay states that she developed rheumatoid arthritis since the accident. She confirmed that there was no family history of rheumatoid arthritis although her great grandmother suffered from polymyalgia rheumatica.In 1996 (should be 1995) Mrs Lay had a road traffic accident in which she had a whiplash injury to her neck and this settled. She had scoliosis as a child and was under the car of Alan Gardner, consultant orthopaedic and spinal surgeon in Basildon. She wore a brace as did her sister. She had low back pain after delivery of her son. She is an ex-smoker of one year.”21.At a subsequent interview on the 5th April 2012 Mr Marks has recorded under the heading Past Medical History the following:“This remains unchanged from my previous report and Mrs Lay confirmed that she had no pre-accident history of neck pain prior to the accident. She is an ex-smoker.”22.When put to her in cross-examination, she did not recall it but when asked whether, if she did say that, it was incorrect, she answered that leading up to the accident she had had no neck pain. That is consistent with how she dealt with her neck history in various health questionnaires which she completed and copies of which are to be found in the bundle at pages 923, 789 and 778. She simply did not regard herself as having a constitutional neck condition.23.Both the experts in their first joint statement (page 199 at page 200,) confirmed in their oral evidence after having heard the Claimant’s evidence in connection with the various entries relating to neck pain, are agreed that:“Both experts note that Mrs Lay had a significant past medical history and had had an adolescent idiopathic scoliosis for which she had received medical attention but no surgical treatment. She also had a pre-accident history of neck and low back pain which we believe was significant in the period leading up to the accident of 10th May 2004.”24.I accept that the Claimant did in fact have a significant past medical history and in particular a history of neck as well as low back pain which would be regarded by those in the medical profession as significant, accepting as I do the evidence on this issue of both medical experts. That does not, however, mean that I should conclude, nor do I, that the Claimant, when addressing questions as to her pre-accident neck condition, was deliberately seeking to understate its significance. I entirely accept her evidence that she regarded the incidences of neck pain as referable to particular events in her life and not as constitutional in nature. This is all the more so in the light of the physically demanding nature of her employment. In the light of my assessment of her evidence and demeanour, I conclude that she gave her evidence on this, as on other issues, honestly and straightforwardly.25.The next issue to address then is the nature and extent of the Claimant’s neck symptoms and the medical evidence as to attributability. The Claimant’s evidence as to her symptoms was to the effect that initially she suffered an ache as though she had jarred her neck, something which felt muscular. Thereafter in the next two to three days she felt muscle pain, a pain from her neck down to other parts of her spine, and the pain became more aggravating as the days went by but was nowhere near as painful as the pain being experienced in her lower back. She went to see an osteopath but, notwithstanding that input, she has continued to suffer symptoms ever since. In her second statement she recorded that her neck symptoms and condition generally had gradually deteriorated leading to regular spasms.26.The Claimant relies on various entries in her osteopathic notes in support of her assertion that she continued to suffer accident related symptoms in her neck. These entries are to be found at pages 732 to 770 in the bundle which cover the period June 2004 to August 2005 and are helpfully summarised by Mr Marks in his second report at pages 238 to 240 and do indeed corroborate the Claimant’s evidence of neck symptoms. 27.The Claimant also pointed to her subsequent involvement with Mr Shair, to whom she suggested she had given a history of her neck symptoms, and who had told her that they should concentrate on the lumbar spine and in particular reliance was placed on a letter from Mr Shair to the Claimant’s GP dated 29th March 2006 ( page 280) in which the following appears:“Mrs Lay informed me that she has been experiencing neck pain for a long time, in fact since her accident. She informed me that this was reported initially but focus was placed on her lumbar spine, as it has been the major source of her pain and restricted mobility”28.It is fair to record however that that is the only such reference by Mr Shair and it is ambiguous since it could equally be read as suggesting that what he was recording was that the Claimant had that day told him for the first time that she had been suffering neck symptoms which she had reported to others whose focus was her lumbar spine. Further it is to be noted that there is no documentary evidence recording Mr Shair’s treatment priorities, if I may so describe them, nor any reference to any neck injury in his letter to the Claimant’s solicitor dated 14th December 2005 (bundle, page 274) or to the Claimant’s insurers dated 13th January 2006 (bundle, page 276).29.The Defendant challenges the accuracy of the Claimant’s evidence as to continuing symptoms ( if indeed there were any such symptoms) on the basis of what is revealed in the Claimant’s medical notes highlighted by Mr Marks in his second report which, it is submitted, points to the level of symptoms having reverted to a background pre-accident state by July or August 2005, coupled with the absence of any reference to neck pain in various documents completed by the Claimant after that time.30.Thus it is, at least, surprising that there is no reference to ongoing neck problems in the admission assent form completed by the Claimant in August 2005, a copy of which is at page 366 in the bundle, which the Claimant characterised as an oversight notwithstanding that she must have realised that accurate recording was very important in such a document and there is no reference to any disability caused by her neck symptoms in the incapacity benefits application form she completed in January 2006 (page 948) which she described as an updating exercise in respect of a previous form. 31.Counsel for the Claimant, by contrast, urges me to accept the Claimant’s evidence as to continuity of symptoms and in so doing to reject the evidence of Mr Marks and to prefer the evidence of Mr Kirkpatrick. I now turn to consideration of that evidence.32.Mr Kirkpatrick, having in his first report (bundle, page 176) ruled out the Claimant’s neck complaint as having anything to do with the index accident, subsequently in the second joint report (bundle, page 258(1)) agreed with Mr Marks that if the Claimant’s account of the occurrence of the neck injury were to be accepted (as I have) then:“Both experts agree that if this is the case, Mrs Lay did suffer from a simple muscular ligamentous injury of her neck consistent with the mechanism of the injury.Both experts have now seen the chiropractor/osteopath records which post-date her injury and have commented upon them in our respective reports. Both accept that in the aftermath of the injury Mrs Lay did receive osteopathic attention to her neck. Both do acknowledge that there was a degree of spinal complaint prior to the index accident. Her last was documented in December 2003 where she complained of some neck pain which was five months prior to the index accident.Neither expert believes that the chiropractor records have significantly altered their respective views on the matter that there has been a period of post-accident neck pain.Both experts agree that Mrs Lay did suffer from a soft-tissue injury to her neck as described above. Mr Marks believes that the likely timescale of relevant symptoms would have been an average of 14 months. Mr Kirkpatrick believes that this would lie between 12 and 24 months.Both experts who have reviewed the pre-operative MRI scan of the neck indicate that to all sense and purposes the discs were normal and there was no sign of any degenerative process evident. Both experts did know that there was some loss of the normal cervical lordosis consistent with muscular spasm. Both experts confirm that she had pre-accident cervical symptoms. Both experts would have expected her to have recovered given the aforementioned findings on the MRI scan and the timescales that they have set out. There were no relevant clinical signs to demonstrate an adverse prognosis prior to the surgery on the cervical spine. We agree that she had relevant symptoms which would have given an indication of quanisity and recurrence.Both experts would have expected that the effects of the index accident, in the absence of any surgery, would have been one of progressive improvement in the timescales discussed above. At the end of these respective periods the experts would have expected her baseline symptomology to have returned to normal. Mr Kirkpatrick believes this to be of a very low grade nature and largely postural in origin. Mr Marks agrees with this and refers to the general practitioner notes indicating that Mrs Lay would have relapsed again spontaneously in any respect.”I should, for the sake of completeness and because Counsel for the Claimant relies on what he says is a change in Mr Marks’ position, evidenced by their first joint statement, make reference to the relevant contents of the first joint report (page 199 at page 201) made at a time (April 2008) when it is fair say that the focus was on the lumbar spine injury.“Both experts therefore are not surprised that Mrs Lay’s condition has apparently deteriorated since the surgery. They would state in joint agreement that they believe that in the absence of the surgery she would have recovered had she been treated in a persisting conservative manner although they feel her condition would have been somewhat aggravated they believe this would be no more than a period of 18-24 months.”33.It is apparent therefore that in respect of the second joint statement the extent of the experts disagreement is narrow but nevertheless significant on the facts of this case. It is common ground that the neck injury is a very minor element of the claim but the period of exacerbation is 12 to 24 months in the opinion of Mr Kirkpatrick and 12 to 16 months (with an average of 14 months) in the opinion of Mr Marks.34.Counsel for the Defendant, in seeking to persuade me to prefer the evidence of Mr Marks, criticised Mr Kirkpatrick’s change of opinion as to the cause of the Claimant’s neck complaint without any apparently coherent reason for so doing, and for suggesting that he did not understand Mr Marks’ opinion that continuing symptoms after 14 months were caused by the Claimant’s pre-accident underlying condition which it was said did Mr Kirkpatrick no favours particularly as, at the time of his first report, he must have concluded that any symptoms, if not accident related, were the result of an underlying constitutional condition. 35.To my mind there really is nothing of substance in either criticism. It was and remains Mr Kirkpatrick’s view that the neck symptoms were very low grade indeed but he conceded that with hindsight he might have downplayed the neck injuries since there was clearly a mechanism for the injury and the osteopath notes lend support to the proposition that there was an injury. In the early stages, the focus was overwhelmingly the lumbar spine condition and in the circumstances that was entirely understandable. As for the second point, that was in the context of the intervention of Mr Shair and his view that any constitutional neck symptoms would not have led her to undergo an operation and to my mind of no real significance.36.I should add that Mr Marks was also critical of Mr Kirkpatrick’s use of statistics compiled in respect of whiplash injuries suffered in RTAs although little turns on that criticism particularly in the light of the agreement of both experts in the first joint statement that the requisite range was 12 to 24 months, albeit primarily in the context of lumbar spine injury.37.Counsel for the Claimant in turn sought to undermine confidence in Mr Marks’ evidence in the light of what he characterised as a series of concessions which he submitted were not, as Mr Marks suggested in his oral evidence, inadvertent mistakes. In particular he pointed to the use of the words “degenerative” and “recurrence” rather than “ constitutional” and “occurrence” in Mr Marks’ second report (page 244). He also highlighted the failure of Mr Marks to take account of the Claimant’s evidence as to continuity of symptoms; his reliance on his interpretation of the osteopath notes and the absence of any relevant entries in the Claimant’s GP records without considering the Claimant’s explanation for such omissions and his failure to take into account the involvement of Mr Shair in the Claimant’s treatment and in particular his letter of March 2006 (page 280) as evidence of continuity of symptomology and what he characterised as Mr Marks having shifted his opinion on the period of exacerbation of symptoms from that identified in the first joint statement to which I have already referred.38.To my mind however much, but by no means all, of the criticism of Mr Marks is misplaced. In particular there is nothing in the so called concessions made in respect of the second report. It is plain on a fair reading of Mr Marks’ reports that he has never suggested that the Claimant suffered from a progressive condition. For example he accepted in his first report that MRI scanning demonstrated no significant degenerative change (page 197) and in the first joint report he accepted that the cervical MRI scan was essentially normal. Nor do I accept that Mr Marks subsequently shifted his position from that agreed with Mr Kirkpatrick in the first statement as to the period of exacerbation. It has to be recalled that at that stage Mr Kirkpatrick did not even attribute any cervical injury to the accident. It is plain that the focus of discussion was the lumbar spine insult and indeed that was the thrust of the evidence of both Mr Marks and Mr Kirkpatrick.39.It is not clear whether Mr Marks had available to him the Claimant’s second statement when he drafted his second report. Plainly it had been served on the Defendant’s solicitors in May 2012, that is after Mr Marks’ interview and examination of the Claimant which took place on the 5th April 2012, but before he dictated his report (14th June 2012) (see page 234 in the bundle). It is not recorded as being a document he had referred to and Mr Marks’ recollection was that he had not seen it. That seems likely on the facts. In those circumstances, it is perhaps not surprising that he did not refer to the contents of that statement but confined his opinion to that which he could glean from the medical reports although, in my judgment, the contents of the statement should have , if in fact they were not, been brought to his attention and he should have been asked to revisit his opinion in the light of that evidence. In his oral evidence he stood by his written evidence, being unwilling to accept the submission of the substance of the Claimant’s oral evidence in the light of what he had found or not found in the medical records, though he did concede that if the Claimant’s evidence were to be accepted he would have to revise his opinion.40.Should then the Claimant’s evidence be accepted notwithstanding the contents of the medical and other records and the views of Mr Marks? On the balance of probabilities I conclude that it should. Her explanation for the absence of references to neck pain in the osteopath notes and the GP notes after July/August 2005 was entirely plausible given the involvement of Mr Shair, the fact that the lumbar spine injury had always been the main focus, and the concentration by Mr Shair on that injury which Mr Kirkpatrick suggested accorded with conventional surgical practice and indeed that she underwent disc replacement surgery in August 2005. In the circumstances the absence of reporting of continuing cervical symptoms is hardly surprising and does not suggest that any symptoms returned to a constitutional level. I accept the evidence of the Claimant as to the continuity of attributable symptoms and do not consider that her evidence is in any way undermined by the contents of the medical and other records in the circumstances of this case.41.I accept and prefer the evidence of Mr Kirkpatrick as to the period of attributability and I conclude that the Claimant continued to suffer attributable symptoms throughout the period of 24 months from the index accident, there being no difference in the presentation of symptoms to suggest that they, at any time in that period, ceased to be trauma related and became constitutional in nature. It follows in my judgment that the answer to issue 2 therefore is that the damage was causally connected with the symptoms subsequently related by the Claimant for a period of 24 months post the accident.