If the judge was saying that the appellant should be taken to have admitted that he had not been suffering right knee pain in the 12 months or so before he consulted Mr O'Brien, then it ran counter to the thrust of his Honour's thesis - which, as I understand it, was that the appellant had not been frank because he had not disclosed the existence and extent of his right knee condition. But if the judge was meaning to imply that the appellant had not only said nothing about his right knee problem in his affidavit, but had concealed it from Dr Milecki, then his Honour, with respect, appears to have been wrong. For Mr McMahon stated in his report that the appellant was referred to him by Dr Milecki for "assessment and management of osteoarthritis of his left hip and right knee"; and it is plain from Dr Milecki's report dated 21 March 2005 that he had referred the appellant to Mr McMahon some time before that report was written.
37 Third, his Honour, with respect, misstated the position when he stated that "in paragraph 10 of his affidavit the plaintiff attributes his inability to return to work to his neck condition". It is plain from what follows in that paragraph that his Honour was treating paragraph 10 as addressing the then current situation. That is not the case. The sequence of information deposed to in paragraphs 9, 10 and 11 shows that the appellant was speaking of the situation shortly following the motor vehicle accident. He was asserting that his neck condition had prevented him going back to his usual work. Paragraph 10 may be contrasted with paragraphs 24 and 30 of the affidavit.
38 Counsel for the respondents took the Court to passages in the viva voce evidence of the appellant with a view of showing that the appellant had in fact asserted that his present inability to resume work was attributable to his neck injury. Even if the evidence was susceptible of such an interpretation, it does not meet the justified criticism of appellant's counsel of what the judge said about paragraph 10 of the appellant's affidavit. In that connection, his Honour discerned unreliability upon a false view of the appellant's evidence.
39 Pausing for a moment, my opinion thus far, in short, is that some of the findings which led to the judge concluding that the appellant was an unreliable witness are compromised by problems of different kinds. Further, it is unclear from the reasons what particular use the judge made of the "unreliability" findings. Again, the conclusions expressed in the first key paragraph do not sit at all comfortably with his Honour's statement, in the following paragraph, about difficulty in separating consequences flowing from the neck injury and other conditions.
40 Before going on, I should refer distinctly to a particular submission advanced by counsel for the respondents. He argued that the sufficiency of reasons must be considered in the context of the issues framed for consideration by the trial judge. Here, counsel for the appellant below had relied upon what he asserted was his client's creditworthiness. That had been the battleground. The judge's reasons should be understood as addressing that issue; and were on that account adequate.
41 Counsel's submission was correct in point of principle. It is also the fact that the appellant's counsel below did argue that his client was creditworthy. But those circumstances do not mean that the judge's analysis of the appellant's creditworthiness must be accepted despite its evident problems. Nor does it mean that it was enough for his Honour to find that the appellant's evidence was unreliable, in the event that no disclosed path of reasoning connected that finding with critical conclusions of fact.
42 I must now explain my earlier expressed conclusion that the judge did not consider and decide all the matters which were pertinent to the appellant's application.
43 His Honour had to decide whether the appellant had made out his case that he suffered serious long-term impairment or loss of a body function; severity turning upon the consequences of injury to the particular plaintiff, and relating to either or both of pecuniary disadvantage and pain and suffering.
44 There were, as I see it, two threads to his Honour's conclusion that the appellant had not made out his case. First, that the various medical problems from which the appellant suffered made it difficult to separate out the-then consequences of the neck injury. Second, that the appellant had not established that his inability to work, and the restrictions and limitations from which he suffered, were due to his neck injury.
45 His Honour's finding about each of those threads was phrased in the present tense. Even if there could then have been a difficulty in differentiating the consequences of different conditions from which the appellant suffered, it did not follow that this would continue to be the case. But his Honour made no findings - other than to say that he accepted, subject to reservations, that the appellant had suffered neck injury and was incapacitated thereby to the extent which he indicated - as to what symptoms of the neck injury the appellant had suffered since April 2001, what symptoms were then present, or what symptoms, if any, were likely to persist indefinitely. Neither did he make any findings whether the left hip and right knee problems were likely to become less symptomatically significant - and if so, then when. He made no findings about those other conditions despite Mr McMahon's optimistic report concerning the hip replacement surgery, and despite Mr O'Brien's guarded optimism as to the outcome of prospective surgery to the appellant's right knee. He made no findings, also, although the evidence plainly suggested that at time of trial, and for a period prior thereto, the hip and knee problems were the most significant of the appellant's other medical conditions.
46 In the event, his Honour made no findings, except as at the time of trial, about the impact of the appellant's neck injury upon his employability, or upon his enjoyment of life. To conclude, as he finally did, that the appellant had not made out his case was to state a conclusion in the absence of necessary findings - which, even considered at the level of sufficiency of reasons, was impermissible.[5]
47 This should next be said. In concluding that the appellant had not established that his then inability to work, and his daily restrictions and limitations, were due to his neck injury, it may be, I put the matter no higher, the judge approached the matter from an incorrect standpoint. What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour's reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test.
48 I should mention one further matter. In the second key paragraph of his reasons, the judge concluded, as I noted earlier, that it was difficult, as matters stood, to differentiate the then consequences of the neck injury and the "multiplicity of other conditions which significantly impair [the appellant's] ability to work and enjoy life". In my respectful opinion, however, examination of the evidence does not support a conclusion that there was any such difficulty. His Honour's conclusion did not sit comfortably with his apparent acceptance that the appellant was incapacitated by his neck injury to the extent which he had indicated. In any event, the plaintiff complained, so far as his neck injury was concerned, of pain and disability affecting his neck and left arm. His other main problems were arthritis affecting the left hip - it had already been the subject of successful surgery - and disability of the right knee. The symptoms affecting the hip and knee of which the appellant complained must surely have been susceptible of disentanglement from his complaint of symptoms deriving from his neck injury. The same could be said about symptoms of gouty arthritis affecting the right big toe and joints in the hands.
49 Next, the appellant had not been treated for his neck injury by physiotherapy for years before 2005. Even if such treatment had been continuing, it could scarcely have been confused with physiotherapy given in the course of rehabilitation from a hip replacement operation, or for a painful knee; whilst the fact that painkillers might give pain relief at more than one site of injury could not mean that the injuries themselves were not capable of dissection.
Orders
50 In my opinion the appeal should be allowed, the order made in the County Court on 9 November 2005 should be set aside, and the application should be remitted to the County Court for fresh hearing and determination.