Darg v Commissioner of Police for the Metropolis [2009] EWHC 684 (QB) (31 March 2009)

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England and Wales High Court (Queen's Bench Division) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Darg v Commissioner of Police for the Metropolis [2009] EWHC 684 (QB) (31 March 2009)
URL: http://www.bailii.org/ew/cases/EWHC/QB/2009/684.html
Cite as: [2009] EWHC 684 (QB)

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		Neutral Citation Number: [2009] EWHC 684 (QB)
		Case No: HQ07X01884

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

31/03/2009

B e f o r e :

SIR ROBERT NELSON
(Sitting as a Judge of the High Court)
____________________

Between:

	Alexander Stewart DARG	Claimant
	- and -
	Commissioner of Police for the Metropolis and Venson Public Sector Limited	Defendant Third Party

____________________

Richard Lynagh QC and Richard Wilkinson (instructed by Colemans-ctts llp) for the Claimant
William Featherby QC and David Platt (instructed by Weightmans) for the Defendant and Greenwoods for the Third Party
Hearing dates: 23rd February 2009
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

Sir Robert Nelson :

On 20 September 2002 the Claimant, sustained lacerations to the index and middle fingers of his left hand whilst working for the third party as a mobile vehicle technician. He was attempting to diagnose a fault on the air bag system of a police vehicle, and in order to do so was trying to move the driver's seat. As he attempted to slide the seat forward his fingers slide along the upturned edge of the blade of a knife, which unknown to him, had previously been wedged between the front seats of the car. The lacerations were treated at the Royal London Hospital where a ring block was administered.

The lacerations healed but in June 2003 the Claimant was diagnosed as having carpal tunnel syndrome (CTS), which was operated upon in September 2003. Thereafter he developed Complex Regional Pain Syndrome (CRPS) the continuing and significant symptoms from which, he alleges, have prevented him from working for the last 5 years and are likely to prevent him from working in the future. The condition is disabling and has prevented him from living a normal life, and required him to have the assistance of his wife in many ordinary everyday activities. His total claim for damages amounts to about £1,000,000.

Liability for the accident is not in dispute and allegations of contributory negligence which had been sustained were withdrawn shortly before the trial. The issues before me are the causation of the CTS, the extent of the Claimant's disability, and the appropriate level of damages to award him in respect of that disability for general damages, past and future loss of earnings and past miscellaneous expenses. I am not requested at this stage to make any findings as to any other head of claims which are sought by the Claimant, such as care past and future, DIY, gardening, aids and equipment, treatment or therapies, or housing costs.

Causation and damages are strongly contested. It is the Defendant's case that, at best, the Claimant has exaggerated the true extent of a genuine injury and its symptoms or, at worst, that his claim is essentially false and that he is entitled, as he knows, to compensation for no more than simple lacerations of the hand which were quickly healed, together with the fear, which fortunately proved to be unfounded, that he might have contracted HIV from the wounds. Considerable reliance is placed by the Defence on DVDs taken of the Claimant over 11 days from 14 June 2007 to 13 December 2008 showing him in everyday activities and pursuing his hobby of air gun shooting.

Mr William Featherby QC on behalf of the Defendant disavowed in his closing oral submissions, the full rigours of the allegations of dishonesty, though he refers to the Claimant's lies and fabrications in his written submissions stating that the Claimant was only behaving like this because he hoped for huge damages. Those written submissions were consistent with the manner in which the case was put in cross-examination to both the Claimant and his wife when it was suggested that he was seeking damages initially for 'a quick bit of cash' until he subsequently developed CTS and attributed that to the accident, that he wanted 'to be a millionaire' and, to Mrs Darg that she was making it up as she went along. I have considered the full range of the Defendant's case.

It is helpful to set out at the outset what is agreed between the parties. There is no dispute that the Claimant suffered lacerations to his left index and middle fingers, nor that he developed CTS, diagnosed in June 2003 and operated upon by decompression surgery in September 2003, nor that he developed CRPS in his left hand in the aftermath of the decompression surgery. It is also accepted by the Defence that the CRPS may have affected his right hand as well, and later his feet, though it is the Defendant's case that in any event the Claimant has by now made a substantially full recovery from his injuries so that he is not entitled on any basis to any future loss of earnings.

The facts.

The Accident and Emergency notes from the Royal London Hospital and the accompanying letters record the fact that the Claimant sustained two wounds on the fingers of his left hand, a very minor laceration, also described as very superficial, on the index finger, the radial aspect of the middle phalanx, and a larger laceration on the middle finger with a skin flap on the distal phalanx. The fairly superficial flap didn't look viable. Lignocaine was injected as a ring block and both wounds cleaned. It is noted that the Claimant was concerned that the knife may have been contaminated so he was given a Hepatitis booster and advised to discuss HIV testing though the SHO considered the risk of infection to be very low.

The A&E notes wrongly refer in one place to the right index finger and right middle finger being injured when it was the left, and also appear to illustrate the right hand in a drawing. They also refer to the ring and middle finger being injured whereas in fact it was the left index and middle fingers which were injured. The summary sheet (B1694) does not identify any treatment carried out in the categories provided. The second category is 'sutures/steri strips' but this was not marked even though a steri strip was applied to the skin flap. There is no reference to any swelling, or removal of the ring from the ring finger though of course the ring finger is wrongly identified as one of the fingers which was injured.

There are no cardex notes from the GP but the computer entries, either as transcripts or summaries are set out in the bundle of medical records. On 20/09/2002 the notes refer to the Claimant's 'casualty self referral'. On 23/09/2002 the notes record: 'dressing of wound, check steri strip to left mid finger reapplied. Healing very well tissue intact finger pads in index and middle finger feeling numb hospital were aware of this. Colour and movement good. Seen by NG'. The last reference is to Dr Naimish Gandhi. On 27/09/2002 the record records 'dressing of wound wounds healing well no dressings req mid finger still ? tissue viable. Getting tingling in hand and not able to bend mid finger fully. Appt given to see GP'. That note was made by Mrs Kate Goode one of the practice nurses. On 30/09/2002 the Claimant saw Dr Ghandi and complained of insomnia and the fact that he was worried about the HIV test. When he was examined that day the wound was found to be healing and it is noted 'well – FROM fingers'. The Claimant next saw Dr Ghandi on 7/10/2002 when it is recorded 'MED 3 – Dr's statement – until 14/10/02 – dash laceration to finger'. On examination the wound is described as healing – 'well – some numbness in tip of finger'.

On 21 November 2002 a letter of claim was sent by the Claimant's solicitors on his behalf to the Metropolitan Police, G9 Claims Department. It recited the details of the accident and said that as a result, Mr Darg had suffered two deep lacerations to his index and middle finger of the left hand requiring treatment at the Royal London where his wounds were treated and dressed. It was stated that he had Hepatitis B injections over 3 months and blood tests, the results of which were not due until 20 December 2002. It stated :-

"He has numbness and pins and needles, together with movement of his fingers and weakened grip strength. He is extremely concerned and anxious about the HIV tests. This has caused him sleep disturbance and him and his family undue worry. … He also had to have his wedding ring cut off, due to swelling in his hand, which 5 years ago cost £600."

There is an entry on 21/02/2003 to left ankle pain when 'dropped battery on foot'. There are references on 21/02/2003 and 06/03/2003 and 04/04/2003 to shoulder pain for which an injection of steroids into the shoulder joint was given. It was noted that the shoulder pain had improved 'after inj' but was worsening again on 04/04/2003.

It appears that the Claimant was seen by Kate Goode on 23 /09/2002, 27/09/2002, 21/10/2002 and 18/11/2002, and the Hepatitis B injections were given by her to the Claimant on 21/10/2002 and 18/11/2002.

There is further reference to shoulder pain on 11/06/2003 and on 02/07/2003 it is recorded 'carpal tunnel syndrome has appt with Mr Sait 21/10/03 CTS 2y to injury at work finding it difficult to grip tools at work thinking about having operation work may pay privately'. The entry of 11/06/2003 re shoulder pain is made by Dr Woodhead and the entry 02/07/2003 re carpal tunnel syndrome is made by Dr S MacDermott.

On 12 June 2003 Dr Woodhead wrote to Mr Sait the consultant orthopaedic surgeon at Darrenth Valley Hospital referring the Claimant to him because of his history of problems with his left shoulder which was quite restricted on elevation and rotation. There was a lot of crepitus within the joint, the steroid injection given by Dr Ghandi was noted and Mr Sait's thoughts were sought. Dr Woodhead recorded that Mr Darg had had problems with some polymyositis when he was in his twenties 'which he feels may have been the origin of this problem, although he is otherwise fit and well.' No mention is made in Dr Woodhead's letter of 12 June 2003 to problems with the left hand. The GP computer notes record that copies of the notes were requested by the Claimant's solicitors, Coleman – ctts on 9 April 2003 and sent on 30 April 2003.

A medico-legal appointment with Mr Fleming, a consultant plastic and hand surgeon, was fixed for 24 June 2003, Mr Fleming having been selected by the Claimant in March 2003 as the specialist with the shortest waiting list. At the examination Mr Fleming diagnosed CTS. At that consultation the Claimant complained of pain in his thumb, index and middle finger since the accident. He complained of pins and needles when reading the newspaper and pain in those three digits at night, waking him on one to two occasions every night. He said that he dropped things, couldn't do up buttons, that the problems were getting worse, that his hands felt swollen that he couldn't play his guitar properly. When Mr Fleming diagnosed a 'fairly significant carpal tunnel median nerve compression of the left hand' he said that 'it would appear that there were signs of this in the immediate post-injury period. Carpal tunnel syndrome may well be precipitated by a hand injury with resulting hand swelling..'. He recommended surgical release.

After Mr Fleming diagnosed CTS Dr MacDermott, from the Claimant's GP practice, the Meopham Medical Centre wrote to Mr Sait, the consultant orthopaedic surgeon, on 11 July 2003 asking him to see the Claimant 'who had an injury at work. He works for the Metropolitan Police and they have agreed to pay for him to have an operation privately.' It was stated that he had carpal tunnel syndrome symptoms making it difficulty to carry on with his work and Mr Sait was asked to advise whether an operation was necessary.

The operation for that surgical release took place on 10 September 2003, performed by Mr Sait. The Claimant had returned to lighter duties at his work on 14 October 2002 and remained in that work until the day before the decompression surgery was performed. He returned to work again on 5 January 2004 though by that time bizarre symptoms had been noted in his left arm on review by Mr Sait on 11 November 2003.

It is noted in the GP records on 10/02/2004 that the Claimant complained of 'swollen hand and pain in left hand following carpal tunnel release. Started with injury to hand September 2001. Symptoms attributed to carpal tunnel syndrome. Had release last November. Symptoms worse. Numbness wakes him at night. No longer has pins and needles. Manual job for police. Refer back to nerve/hand specialist.'

The Claimant ceased work for the final time on 15 March 2004. When he was reviewed by Mr Sait skin changes, pain inappropriate to the condition and a stiff left wrist were noted. Mr Sait diagnosed reflex sympathetic dystrophy, another term for CRPS. The Claimant was referred to a pain specialist, Dr Brenda Lobo, at Fawkham Manor Hospital. On 3 September 2004 Dr Lobo noted colour changes with visible mottling of the left hand, diminished temperature compared with the right and paraesthesia. She concluded that he definitely showed signs of neuropathic changes due to complex regional pain syndrome in the left arm. Mottling was also noticed of the left hand by Dr Wright who examined on behalf of the Defendant on 19 November 2004. He also noted increased sweating of the left palm and slight mottling of the skin of the right hand. Dr Wright had no doubt that Mr Darg was suffering from CRPS and recommended that he be referred to the Royal National Hospital for Rheumatic Diseases at Bath. Dr Wright said that the records available to him did not confirm that he had had continuing sensory problems and that to accept that the injury caused CTS he would be helped by independent evidence of continuing numbness and/or tingling.

Subsequent to that examination, and no doubt as a consequence of it, statements were obtained from eight friends, work colleagues and the Claimant's mother-in-law as to what they observed and what the Claimant complained of to them as to his condition after the accident. These statements were taken between February and April 2005. The Claimant himself had prepared a witness statement on 23 March 2005 which he amended and added to in relation to the continuity of symptoms in a further statement of 13 June 2005. Both these statements were disclosed.

The Claimant was first examined by Dr Huskisson, the consultant rheumatologist who was called by him to give expert evidence at the trial, on 12 April 2005. Dr Huskisson concluded that the Claimant had typical features of reflex sympathetic dystrophy, and agreed with Mr Fleming that the development of the carpal tunnel syndrome was likely to have been due to the swelling of the left hand following the accident of 20 September 2002. He described the sequence of events as follows. Mr Darg cut his finger on the knife, the hand became swollen causing carpal tunnel syndrome, the carpal tunnel was decompressed as a result of which he developed RSD. If it had not been for the accident he would not have required the CT decompression and would not therefore have developed RSD.

Dr Huskisson considered the GP's records in relation to the Claimant's earlier medical history and noted that he had had many symptoms prior to the injury including fibromyalgia, irritable bowel syndrome, and chronic fatigue. He had 'lots of psychosomatic complaints.' Dr Huskisson considered that the RSD was fortunately fairly mild; it was difficult to predict the outcome with any certainty but he expected that it would improve to some extent over a few years. He encouraged the Claimant to use his left hand as much as possible.

Dr Wright, on behalf of the Defendant, carried out a second examination on 10 August 2005. He found that Mr Darg's condition had worsened over the last months since he had last seen him. He was now developing CRPS in the right hand and had clear signs to support this diagnosis. He noted that the Claimant had had three Guanethidine injections into his left arm, the last in February 2005 which had not been of any help. Dr Wright found that the right hand looked mottled, was affected by increased sweating with temperature the same as the left. The right thumb, index and middle fingers were sensitive to touch and there were a few black hairs on the ulna side of the forearm, different from his usual arm hairs. The left hand was mottled and sweating excessively and the fingers were semi flexed but would straighten. Dr Wright saw the statements from the eight causation witnesses and said that in his view they supported Mr Darg's history that symptoms of CTS started immediately after the injury and that the condition of CTS may have been precipitated by the incident and injuries sustained. He was pessimistic about the prognosis for the development of the CRPS.

The Claimant's Occupational Health doctor, Dr Helliwell reported on the Claimant's condition on 21 September 2005. Attempts had been made to re-introduce the Claimant to work but Dr Helliwell assessed him as being permanently unfit for work as a motor vehicle technician and any other work to which he had so far been suited by means of qualification, experience and training. His employment was formally terminated on 31 July 2006.

On 30 January 2006 the Claimant attended the Royal National Hospital for Rheumatic Diseases at Bath. He was there found to have symptoms in both hands and the balls of both feet with tenderness to touch. These symptoms were described as very classical. He was encouraged to undergo desensitisation exercises and use his hands as much as possible. Inpatient treatment was recommended. He was assessed as independent in bathing, the box on the patient profile being marked accordingly, with no entry being made in the box relating to the need for assistance for bathing.

In an Incapacity for Work Questionnaire filled in by his wife on his behalf on 2 March 2006 Mr Darg ticked the box indicating that he couldn't stand for more than a minute without having to sit down, that he couldn't walk for more than a few steps without stopping or feeling severe discomfort, he couldn't stand for long because of a severe burning and aching in his feet, walking being very painful. He could not turn the pages of a book with either one of his hands, could not raise either arm as if to put something in the top pocket of a coat or jacket, and couldn't raise either arm to his head as if to put on a hat, or above his head as if to reach for something. One month earlier on 6 February 2006 he had undergone a 50 minute driving test over a distance of 15 miles driving a manual car with power assisted steering. This driving assessment test was carried out by the Maidstone Weald NHS Primary Care Trust by an advanced driving advisor in order to assess Mr Darg's disability of complex regional pain syndrome affecting his neck, arms, hands, legs and feet. The driving advisor's assessment was that Mr Darg's reported disability had no detrimental effect on his ability to drive safely and he had no hesitation in recommending that he continue to drive a manual car without adaptation. Should his condition deteriorate he may need adaptations to assist him to continue to drive and should be re-assessed at that time.

In March 2006 the Claimant joined the South East Air Gun Club at Paddock Wood in Kent. Since becoming a member he has regularly taken part in competitions and is acknowledged as one of the leading shots in the club with considerable skill and high levels of success. Competition shooting is mainly carried out in the prone position but there are also standing and kneeling shots. When practising shooting is done from a table for support. The Claimant has used a spring loaded gun and a compressed air gun (PCP) he uses a sling to carry the gun and support it, though is not permitted to do so in competitions. There is a substantial dispute about the ease with which he is able to participate in this hobby and considerable reliance is placed by the Defence upon the DVD of August 2007 showing the Claimant using his air rifle.

On 17 August 2006 the Claimant was examined for a second time by Dr Huskisson who found that there was a considerable worsening of his condition with widespread tenderness. On 10 October 2006 the Claimant attended Bath again where all his limbs were extremely warm to the touch and the palms and soles of his feet were excessively sweaty. He stayed at Bath as an inpatient from 28 January 2007 to 2 February 2007. He had marked problems with sleep disturbance, pain, a sense of frustration and anger and did not gain much from it.

On 21 March 2007 he was examined for a third time by Dr Wright on behalf of the Defence but that report has never been disclosed. Shortly afterwards on 30 April 2007 the first examination by Professor Jayson, the consultant rheumatologist called on behalf of the Defendant took place. Professor Jayson noted that there did not appear to be any mention of problems with the hand until July 2003 after the accident, even though the Claimant was seen on other occasions by his GP. Professor Jayson said he could see no reason why minor lacerations to the end of the index and middle fingers should cause the development of carpal tunnel syndrome and expressed the view that if the onset of symptoms was not until May, June or July 2003 it was likely that the onset was constitutional and unrelated to the accident. He accepted that CPRS had developed and said that it was a syndrome which was essentially one of amplification of the perception of musculo-skeletal and other problems so that minor symptoms became painful and distressing. He thought there was a major psychological amplification of the perception of problems and disability with an underlying psychological pre-disposition to react in this way. He also raised the possibility of conscious amplification of problems.

It was within six weeks of this examination that the first surveillance of the Claimant took place on 14 June 2007. This was the first of the eleven days of surveillance, the final being on 13 December 2008.

The Claimant trapped his left index finger and required hospital treatment on 19 June 2007. A second Incapacity to Work Questionnaire was filled in on 2 July 2007 with somewhat more optimistic answers than the previous year, but still expressing serious disability and pain.

On 23 July 2007 he was noted as having signs of CRPS affecting both hands by the specialist registrar in plastic surgery at the Queen Victoria Hospital, East Grinstead.

In July 2007 he was visited by the care expert Rachel Glenny and in November 2007 by Heather Unsworth the care expert for the Defendant.

On 13 November 2007 he was assessed by the Department of Work and Pensions at 45% disabled for life, that disability being caused by the accident on 20 September 2002.

Mr Darg was examined for the third time by Dr Huskisson on 11 December 2007 when he confirmed his earlier diagnosis. He considered that, as all seemed to agree, employment would be in Mr Darg's best interests. He noted as others had done including Dr Cohen from Bath, that the polymyositis could well have been viral and some of his psychological problems due to a reaction to the steroid treatment.

In his second examination on 15 January 2008 Professor Jayson said that the Claimant described persisting very severe widespread disability. By this time Professor Jayson had seen the DVD of August 2007 showing the Claimant shooting. The Claimant had volunteered on the previous examination that he did shoot at an air gun club and reiterated this on the second occasion but said that he could only manage standing and shooting for a short period and could only cope with shooting when lying down for short periods. Professor Jayson, who records his report into a dictating machine after he concludes the examination, and with the patient still present, recorded that the Claimant used a ski pole which he held in the palm of his right hand and the weight bore on the base of the hand which he leaned upon in order to reduce the pressure on his feet. He said that he had discussed this with Bath and would probably get a second stick to hold in his left hand. He described to Professor Jayson the driving assessment but said that they had recommended an armrest for his left arm, a high seat and a steering ball and automatic transmission though he in fact had manual transmission with which he could cope with a steering ball.

Professor Jayson said that he still had difficulties accepting the severity of the Claimant's complaints and having looked at the video had difficulty identifying the presence of any disability. He also noted that the Claimant travelled to the clinic on an arduous journey without bringing any analgesic tablets with him. Professor Jayson expressed surprise at the choice of a vehicle with manual transmission which would require a lot of use of the left hand and concluded that there was exaggeration of the severity of the ongoing problems.

On 10 February 2008 when he had further inpatient assessment at Bath the Claimant was advised to pace his efforts but the Claimant said that he was only able to work on a boom – bust approach. The Claimant was advised in September 2008 to continue with his hobby of rifle shooting.

The Claimant had swollen and mottled hands when seen by the GP on 18 April 2008 and mottled and sweaty hands when seen on 18 July 2008. The Claimant has not sought to obtain any employment as he does not feel that his condition is sufficiently stable enough to permit him to do so.

The joint medical statement.

Dr Huskisson and Professor Jayson disagreed about the cause of the CTS. Dr Huskisson believed that the swelling of the left hand following the accident caused median nerve compression and that but for the accident he could see no reason why the Claimant could ever have developed CTS whereas Professor Jayson thought the absence of further mention between 23 September 2002 and June 2003 of any symptoms of the hand was very surprising. There was no documentation of swelling and there could have been confusion between the symptoms of the finger lacerations and those of carpal tunnel syndrome. CTS most often arises as a constitutional matter. Professor Jayson's views against that background are expressed as follows:-

"Nevertheless, it does appear that there was the gradual evolution of carpal tunnel symptoms following the accident. It is possible that the development of the carpal tunnel syndrome was co-incidental. Dr Wright was unclear on the balance of probabilities that the carpal tunnel syndrome was a consequence of the original injury. Nevertheless on reconsidering the evidence, the most logical explanation would appear to be that the carpal tunnel was vulnerable and that the accident in some way precipitated the onset of symptoms that gradually progressed requiring surgery some months later. It is difficult to quantify any advancement of the onset of symptoms and the requirement for surgery but it seems reasonable to suggest that this was by perhaps one to three years."

There was therefore a considerable shift in Professor Jayson's opinion, described by him in evidence as a retreat.

Dr Huskisson and Professor Jayson also disagreed about the extent of Mr Darg's disability. Professor Jayson considered that the various DVD sequences showed little if any evidence of disability and were in gross contrast with the appearances he presented at the time of his examination. In particular he did not appear to have any difficulty in using his hands. Dr Huskisson thought the DVD supported the complaint of painful hands, with them being kept in his pockets to prevent them from being knocked and asking his wife to carry the children's cases on the way back from school. On days after shooting he stayed at home.

Dr Huskisson agreed however that the Claimant was not completely disabled and both experts agreed that he could and should return to work which would be beneficial for his medical condition. Professor Jayson thought he should have returned to work in spring 2006 whereas Dr Huskisson said the beginning of 2008.

There was a further joint statement relating to employment in which Dr Huskisson said that the Claimant could have returned to some kind of work on two hours of three days a week in the summer of 2007 but that he would have great difficulty in finding suitable work. Professor Jayson found it difficult to say when he should have returned to work as he was an unreliable witness but considered that three hours per day on three days a week then increasing the hours and activities thereafter was appropriate. He may well have been able to undertake a full time job. Dr Huskisson however considered that the Claimant would still be doing two hours on three days a week but might be able to increase this working to nine hours per week in 2009 and up to twelve hours a week in 2012 if he could find suitable work.

Professor Jayson considered he should be able to undertake full time work as the very severe disability he presented at examination was in contrast with his functioning in the DVD sequences. Dr Huskisson thought that the Claimant would never be likely to be able to return to full time work, certainly not in the foreseeable future. Professor Jayson thought there would be continuing improvement particularly after settlement of the claim.

There is also a joint report from the two psychiatrists who examined the Claimant, namely Dr Turner on behalf of the Claimant and Dr Master on behalf of the Defendant who both reported in 2008. Dr Master thought that Mr Darg had a pre-accident history of somatisation whereas Dr Turner thought that he experienced hypochondriacal worry in the setting of a major depressive episode in 1998/1999. Neither of the psychiatrists considered steroid paranoia which Bath and the GP considered.

Both psychiatrists agreed that Mr Darg was not currently suffering from a psychiatric disorder and that he has not suffered from any post-accident psychiatric disorder. There was no indication for psychiatric treatment. There was in Dr Turner's opinion a prior vulnerability to depression and an increased vulnerability to psychiatric disorder because of the physical disability whereas Dr Master did not consider that any future psychiatric disorder could be attributable to the accident.

Both agreed that there were no current psychiatric reasons why Mr Darg should not work in any capacity.

Dr Master considered the DVD evidence to be inconsistent with Mr Darg's claims of disability and that Mr Darg had sought to mislead about the extent of his disability whereas Dr Turner expressed the opinion that it was for the Court to determine whether the DVD evidence showed exaggeration of symptoms. Both agreed that if there had been exaggeration there was no psychological explanation for this.

The evidence.

I have reviewed the witness statements and the oral evidence. It is necessary to summarise some parts of the evidence particularly in view of the challenge to the Claimant's honesty and accuracy.

Mr Darg described himself as a 'boom or bust' sort of person, as he did to the consultants at Bath. He attempted to do as much as he could within the limits of his disability and had been encouraged at Bath to use his hands as much as possible, including shooting, albeit with the advice that he should learn to pace himself. In view of the advice from Bath that he should remain active and what he regarded as the Defendant's criticisms for him attempting to do so, he felt as if he were 'damned if he did and damned if he didn't'. He said that he kept his hands in his pockets in order to prevent them from being knocked and described his walking speed, which it shown on several of the DVD's, as being at a normal and deliberate pace. When he gave his evidence he did not use his left hand in order to turn over the pages in the bundle, and told me that this was because although he could do so, it would cause him pain and discomfort if he did.

Mr Darg accepted that he had attended his GP on many occasions before the accident with a wide range of complaints. He accepted that he had seen six specialists in the seven years before the accident but said that they were mostly to do with his polymyositis and did not relate to minor complaints.

He had given varying accounts of what he had seen and what he had been told of the knife in the police car and was challenged about the inconsistencies.

There was no reference in the A&E notes to pins and needles because they hadn't come on until a day or so later. He accepted that the GP's notes did not record swelling and varied as to whether complaints by him of pins and needles or numbness were recorded. He said that he did however tell the nurse and the GP about his problems even if they did not always record them. He was told that his problems would settle down both by the hospital and at his GP's and so didn't continue to mention it on every occasion. There was no reason to mention his hand symptoms when he was complaining about his shoulder as he had been told that it would take time for the hand to recover. He did not know however why he had not mentioned his hand on the 4^th April 2003 nor why when the GP wrote to the orthopaedic surgeon about his left shoulder on 12 June 2003 no mention was made of his hands. He said that he probably did not mention his hands to Dr Woodhead at that time as he thought he was going to a medico-legal appointment for a report. He in fact saw Mr Fleming for that report some twelve days later on 24 June 2003.

Even though his symptoms were getting worse, as demonstrated by his dropping of the battery at work due to loss of grip, and his failure to be able to play the guitar, he was told that it was all part of the healing process and that he could expect pins and needles and pain which would all settle down.

He had made one witness statement in March 2005 and another witness statement in June 2005, the latter containing more references to the continuity of symptoms. He said that he was simply providing more detail and not 'spicing up' the statement. He denied that he was out for a quick bit of cash by bringing an early claim. He said he'd not given up work never to return as he went back to work and indeed applied to go back on light duties after he had retired. He was not simply trying to get money out of the claim.

He said that his hand was swollen for some weeks after the accident and then it swelled up again, it fluctuated. He had mentioned pins and needles at the surgery up to November on many occasions.

When he was cross-examined about the different accounts of his symptoms that he had given to the various doctors who had examined him, for example, on some occasions mentioning numbness or pins and needles or pain and on other occasions not, he said that he was experiencing all these different symptoms at the time and had given the accounts he had given to the best of his ability. It was very difficult to deal with when describing different symptoms on so many occasions and he asked the Court to look at the whole picture.

He said he knew it was a possibility that he would be videoed but denied that the reference in his wife's witness statement to nothing external making him look disabled was an attempt to anticipate the video.

As to the DVDs he said that these did show him seeking to protect his hands and to stop them flaring up. DVDs showed that he did not help the delivery man, that he kept his hands in his pockets, that he walked slowly, that he had discomfort when putting on his seat belt, that he used a sling on his rifle, that he was not able to go out on the days after he had been shooting, that he was in visible pain on 21 October 2007, that his wife always carried the bags or children's satchels and that he could be seen in visible discomfort going up the steps to see Professor Jayson on 15 January 2008. The DVDs did also omit signs of him being in pain and discomfort, or his wife helping him, or him taking painkillers in Starbucks.

Mr Darg denied that the entry in the Incapacity for Work Questionnaire was greatly exaggerated, and said that he was in severe discomfort, experiencing pain after some 50 yards walking. The distance he walked to and from his children's school was some 500 yards. Such a walk affected him but he had been advised to keep as mobile as he could. As to his shooting which he started in March 2006 he used two guns, a TX200 which weighed 4.2kgs and an S400 which 5lbs 9ozs. He was proud of his success at shooting and when asked how he could hold a rifle at the angle shown in the DVDs if he was in pain he said that he just could. He agreed that he was able to strip the gun and load a pellet into the gun albeit fumbling when doing so, but that he needed help when dressing.

He was not exaggerating when he said that he had a heightened sense of noise or that his vision occasionally blurred. Most of his shooting practice was done from a table. The DVD showed him in competition. The DVD showed him getting up and down from the ground with ease but the majority of times he had to lean on something in order to be able to do so.

He did take ski poles out with him if he walked for a long distance such as in Trosley Country Park. But he used the stick to lean on; if he did take a walk of such a distance it left him exhausted with his hands and everything flaring up. He denied walking into Professor Jayson's surgery leaning on the ski pole or leaving it in Starbucks café when he left. He leant on the pole when he was stationary and did not use it for walking. He only demonstrated the use of it when moving because he was asked to do that by Professor Jayson. He used it for leaning on to take the weight off his feet, only for that purpose. In re-examination however the Claimant said that it was a bit of both, he used it both when walking and when standing.

He said that his ability to drive was compromised and that he couldn't drive as much he would like to. His feet and hands became uncomfortable when driving, when changing gear and when using the pedals. Although the driving examiner in February 2006 had said in his report that he had no hesitation in saying that Mr Darg could drive a manual vehicle without adaptations, he had spoken to Mr Darg after the test and had recommended that he had a high seat, a steering ball and use an automatic car.

When he saw Professor Jayson and was asked about his tablets, he produced the prescription form rather than the tablets himself although he did have the tablets with him.

He agreed that he played computer games, with his son, and that he called himself 'Darg Vader' when he communicated with others by e-mail. He did that with one finger typing.

He agreed that he been advised to go back to work by both Dr Huskisson and by Bath but there was nothing about him attempting to do so in his witness statement nor were there any documents to show that he had. He said that he had researched the route back into work but his condition was not stable enough for him to pursue it. When asked to describe the amount of help that his wife gave him on a daily basis he said that the total was of the order of some twenty minutes but it depended on the day. He denied the eighteen hours a week claim through his care expert was excessive. The pain he experienced could be really bad and fluctuated from hour to hour and day to day. It was completely random.

After he had finished shooting he experienced too much pain to come outside the house. The Sunday before the trial he had experienced unbearable pain and was not able to put pressure on anything. The DVD showed him carrying things under the arm, never using his hands. He said in re-examination that it didn't cross his mind that he was actually being filmed. He dropped numerous pellets when trying to put them into his gun. He had looked into becoming a part-time taxi driver but felt that he was not able to do that because it involved lifting luggage which he could not do. He held a Class 1 HGV licence and a coach licence and said that as a consequence he had not wanted to be restricted to an automatic vehicle when he took the driving assessment test.

Mrs Darg told me that she herself was disabled, she had a rheumatic condition of the spine, and she'd had a hysterectomy, and had had surgery on her left leg. Nevertheless she had to do all the lifting and carrying for her husband who could no longer do it, and had to assist him in his dressing, getting in and out of the bath, and get his medication when he needed it.

She felt embarrassed about parking in a disabled bay when her husband looked as if he were not disabled and they had had altercations with the public about this.

She said that her husband doesn't feel severely disabled, as he was described in Professor Jayson's report, but feels that he has a disease which he finds disabling. The reason that Professor Jayson was shown the repeat prescription form rather than the drugs themselves which her husband had with him was because there was nothing on the drugs to show whose they were.

She said that she saw swelling on her husband's hand, and he had told her, as she says in her witness statement, that his wedding ring had had to be cut off because of swelling. She denied that Mr Darg was a hypochondriac.

She was able to produce the letter showing that they had asked the solicitor to request Mr Fleming to carry out the medico-legal examination as he was the first expert available. She told me that her husband did feel pain after about 50 yards of walking and that he did have a lot of trouble going up and down the stairs. Indeed she said that his knuckles were calloused on the back where he used them to support himself. He does not look disabled and that can give rise to misconceptions. She denied laying the ground, in making reference to this in her statement, for the videos as she knew they were being watched. Her husband's ability to shoot depended on whether he had a good day or a bad day. She had to carry the bags and the basket. Her husband was not exaggerating his condition. If he fell on his hands he would be laid up for a couple of hours or even for days. He was regularly in pain and when he was she would leave him alone to sort himself out.

Some eight witnesses were called as to the continuity of the Claimant's symptoms. They made their statements between February and April 2005. Mr Richard Davis was the Claimant's line manager at work. He described Mr Darg as a man with good technical ability and a good ambassador for the company. He had a previously good sickness record and there was no reason to disbelieve him when he said he could not do his full work on his return from the accident. He complained of numbness and tingling and didn't feel he had full use of his hand. Mr Davis saw the Claimant from the time that he returned to work and knew that he was performing only light duties. He said in cross-examination that he wasn't sure whether the numbness and tingling had been as a result of the operation of 2003, in other words after that time. In re-examination he said that the Claimant had tingling and numbness in the fingers from the time when he returned to work.

Mr Paul Wells saw the Claimant a few days after the accident and remembered that from the outset he complained of numbness and pins and needles and pain in the hand. The cuts looked worse than superficial when the Claimant took the bandage off to show him. There were cuts across the joints of four of the fingers.

Mrs Keeble is the Claimant's mother-in-law. She described the Claimant as experiencing pins and needles and shooting pains in the injured hand which he continued to have after the accident. When it was put to her that he had got better from the cut she said no, he did not, the cuts healed but the symptoms got steadily worse. She knew that he had to have an injection in his shoulder although this was not mentioned in her witness statement.

Mr Maynard, the finance manager at Croydon Police Station, used to meet the Claimant in the gym from about November 2002 where the Claimant went to work because of the better lighting. He was not able to work out in the gym himself because of his condition, but pointed out to Mr Maynard that his technique was wrong. Mr Maynard observed blotchiness in the Claimant's hands which only appeared after the operation but said that the Claimant told him he had pain, tingling and pins and needles and numbness in his hands.

Tyrone Taylor is a police sergeant and knew the Claimant at work because of their common interest in computers. He could pinpoint the time when the Claimant's injury occurred because it was close to his birthday in September 2002. The Claimant told him after his return from the accident that he had problems gripping and experienced pins and needles and lack of strength. In the summer of 2003 he saw that he was having problems picking up screws with his left hand. He also knew nothing about the shoulder.

Mr Frost is friend of the Claimant who also worked at Vensons. He spoke to the Claimant regularly after the accident and was told by him that he had pain in his fingers and pins and needles with numbness and gripping problems. He was unaware of the shoulder problems.

Mr Leslie Whiter took the Claimant home on the evening of the accident and saw that he had one finger heavily bandaged which was weeping and was holding his hand up to reduce the pressure and throbbing. He said that when the Claimant returned to work with Vensons where Mr Whiter was a technician, he was complaining of pins and needles in his left hand and said that it felt weak. He continued to do work and went on to lighter duties. He saw the Claimant infrequently – months apart.

Adrian Milton is the fleet manager for five police stations. He met the Claimant about 5 years before he began to work for Vensons. He spoke to the Claimant regularly after the accident and was told that he had problems about using his hand and gripping. He said he had a numbing sensation in the hand with an inability to grip. Mr Milton said that he saw that the Claimant had problems carrying tools, handles, torches and heavy batteries due to weakness of grip and pain. He described the Claimant as being a mechanic whose work was of high quality and fast. He said that he was an exceptionally good mechanic. His absence caused problems at work. They had more delay when he was unable to work full time. He was unaware that the Claimant had a problem with his right shoulder and did not know that he had been doing overtime whilst on light work.

The Claimant called three witnesses who shot with him, each of whom described having to assist the Claimant from time to time in getting up and down when shooting. Each of them said that they were aware of the Claimant suffering from pain. Mr Simpson described the Claimant not being required to bring targets back and said that he had seen him fall over. He had first met the Claimant at the Southern Hunters shoot in 2007 and noticed that he had difficulties when he was getting up or down. He would look normal when shooting but would shuffle between pegs.

Richard Eslick described the two guns used by the Claimant and their different weights. The heavier gun was about 9lbs. The Claimant used a sling for carrying the gun. His hands occasionally went bright red with flecks on them. He was taken through copies of the gun club records in shooting competitions from 2006 to 2008. The Claimant was consistently in the top few marksmen. Thirty rounds would be fired in a competition with no time limit. The spring loaded gun was cocked with a lever under the barrel which required less force than a barrel cock system. It had a small amount of recoil. The PCP gun did not require any force and had no recoil to speak of. Mr Eslick recalled an occasion when in round 4 of the competitions where the weather was bad and the ground conditions poor he had fallen over because of the bad ground conditions and both he and the Claimant had decided that it was dangerous and stopped shooting. He agreed that when looking at the various photographs of the Claimant on the website he was, for example, shown to have been lying down in the mud, shooting someone else's rifle which had been cocked for him, and shooting from a kneeling position. There was also a photograph of him using his left hand to dry up a cup. This was something Mr Eslick had never seen him do before. He didn't think the Claimant looked normal as he walked in an abnormal fashion. He agreed that he was able to shoot over all sorts of terrain, to hold a 9lb air rifle still, and be a very successful shot. The Claimant was able to strip down his gun but his lack of dexterity meant that at times he found it difficult to handle screws. After he had attempted to shoot in the enforced sitting position he suffered a great deal of discomfort. His disability however was no handicap to his shooting ability. He had provided the hundred pellet box, the same as the one he used, for the Claimant. He had never seen the Claimant using a specially adapted pellet box.

Mr Crowther described the Claimant as being very slow and careful, with difficulties getting the pellets in and out. He had had ME since 2001 and was naturally sympathetic to someone who had a pain problem. Like the other witnesses he had been shown the DVDs, in his case at the Claimant's house. He saw one DVD which he regarded as representative of the way he conducted himself. He seemed to be able to get up and down normally but his face would wince and his hands would be in spasm. He was telling the truth.

The DVDs, edited and unedited versions, were available to the court and commented upon by the witnesses. They form an important part of the Defendant's challenge to the Claimant's credibility. Matthew Tandy, the head of the video editing team, said that there were unexplained gaps in the films but the general rule was that no passage would be edited out which showed disability. The films, which I have reviewed extensively, show the Claimant walking to and from his children's school, in a DIY store, in his car and driving his car, travelling to and from the medical appointment with Professor Jayson, in a Starbucks café on that day, and shooting in competition. One of the films of him shooting, namely that of October 2007, is of very poor quality. The Claimant himself has prepared a DVD showing the gun club shooting area, the layout of targets and the fact that the long grass is solely restricted to the areas along the fence lines.

The medical evidence

Both doctors gave evidence essentially in accordance with their reports and the joint statement. Each is alleged to have shown a lack of impartiality in his approach to the case. Dr Huskisson said that coldness, moisture, colour change and unusual hair growth were all objective signs and present here. These indicated the presence of CRPS. He thought it very likely that a hand injury is going to cause swelling and said that the whole hand may become swollen when the fingers are lacerated. Swelling was not essential but it was the most likely mechanism. Traumatic inflammation caused by cuts can spread to the wrists and he had experienced patients getting swelling of the whole hand after lacerations. He accepted however that CTS was an unusual consequence of a hand injury, indeed he would describe it as improbable and there was no literature to associate finger injuries with CTS. If however swelling did occur then that could cause swelling to the carpal tunnel which could lead to the development of CTS. Although most cases of CTS were idiopathic in the sense that they did not have a cause, it was most unusual in a 32-year-old man in his non-dominant hand. There were no features to make the Claimant a likely candidate for constitutional CTS and there was nothing constitutional about him. Where pins and needles had developed after the accident it was most likely that the cause was the swelling as Mr Fleming and Dr Wright had also agreed. Constitutional problems arising by coincidence at the same time as the injury was the least likely explanation.

Dr Huskisson said that the DVDs and the driving assessment were consistent with what the Claimant had presented to him, though he accepted that they demonstrated that the Claimant could do more than he had realised that he could. The point was that none of what he was doing on the videos was unknown. He had not said that he couldn't do something and was then seen to be doing it. However it did surprise him that he was able to do what he was doing on the videos and it was that which led him to believe that he could in fact do part-time work. He did not regard the Claimant's slow and deliberate walk as being normal. It was highly unusual, as it was for him to walk with his hands in his pockets or stay at home all the time after activity. Professor Jayson was wrong in saying that the Claimant's weight could be an element in the development of constitutional CTS. He was not obese but only slightly overweight and it was not a relevant consideration. His own view was confirmed by that of Mr Fleming and Dr Wright that the injury was the cause of the CTS; of the two improbabilities the injury seemed the much more likely cause.

Professor Jayson told me that in his view the issue was whether the symptoms flowed from the time of the accident or whether they occurred post accident and prior to the examination by Mr Fleming. In other words, was there a gap in which the symptoms of the lacerations, which could easily be confused with CTS symptoms, had cleared up or largely attenuated before the onset or evolution of the real problems of CTS?

Professor Jayson posed this question to me because of his retreat from the full rigors of his previous view that there could be no causation. He had found Dr Huskisson a persuasive advocate on causal connection. Professor Jayson had come to this view in spite of the fact that he could see no mechanism for the swelling and had considerable doubts as the course of events. It was possible that an accumulation of fluid in the carpal tunnel could have precipitated the symptoms in a tunnel already compromised, though not to the extent of causing symptoms. If there was a causal connection it was therefore in his view an acceleration case, though he accepted that his figure of one to three years acceleration was wholly speculative. He considered that there must have been significant vulnerability for CTS to have occurred and suggested the possibility of the Claimant being overweight, though accepted that this had never been raised before in any of his numerous letters or in his two reports.

Dr Huskisson dismissed the acceleration theory. He said that there was no evidence to support any constitutional vulnerability whatsoever. It was very, very uncommon for young men to get CTS without cause. There was no basis for either acceleration or any period of acceleration.

Professor Jayson remained of the view that the DVDs were inconsistent with what the Claimant had presented to him as to his condition. The most important thing was the fluidity with which the Claimant got up and down from the shooting position. Professor Jayson accepted that he had had his doubts about the Claimant from the word go. The severity of symptoms can fluctuate but not from symptom-free to disabled and the shooting DVD showed him to be essentially symptom-free. If however the fluctuations were to the degree which the Claimant describes, Professor Jayson accepted he would have difficulty in getting employment.

Professor Jayson, during his own evidence, sought to diminish the conclusions of Mr Fleming by pointing to Mr Fleming's use of the word "hand" in his report when Professor Jayson said he should have been referring to fingers, thus demonstrating, he said, that there were some doubts about Mr Fleming's accuracy. This criticism has no merit. Professor Jayson agreed that he had omitted from his report the reference in the GP's notes of 27 September 2002 to "tingling in hand" and said that that had been an error. He had made no reference to the possible effect of steroids in 1999 but simply suggested there might have been an underlying psychological predisposition in the Claimant.

The submissions

I have been greatly assisted by the extensive written submissions and the oral submissions provided to me by the parties. I summarise the main points here.

The Defendant's submissions

The Defendant's primary case is that causation is not established, either on the facts, as the Claimant's condition resolved completely within a normal brief period of time for simple finger lacerations, or on the medical evidence because two improbabilities cannot establish a balance of probability. (See Rhesa Shipping Co SA v. Edmunds, 'the Popi M' [1985] 1 WLR 1948). The A&E notes record no swelling and the GP's notes show no lasting complaints of symptoms of CTS or indeed of the hand. The contemporary objective records should be preferred to the Claimant's and his wife's self-serving evidence and the uncertain evidence of his witnesses who had confused or conflated the various periods of symptoms since the accident, namely the immediate post-accident period of September-October 2002, the pre-Fleming examination in June 2003, and the post-CTS operation in September 2003.

The Claimant's account, Mr William Featherby QC submitted, was unreliable and inconsistent, and he had chosen not to disclose privileged documents which might have filled the gap, such as attendance notes of his solicitors and his witness statement given to Mr Fleming. His unreliability and exaggeration in describing his later symptoms should be taken into account when assessing his evidence of his earlier symptoms.

Dr Huskisson's evidence, the Defence submit, is in danger of espousing the "post hoc" fallacy – A occurred then B occurred so A caused B. He accepted that there is no medical science yet published which treats laceration of the fingers as a cause of CTS, accepts that CTS is usually idiopathic, that is appears for no obvious reason, yet states that the accident is a more likely cause than a constitutional onset of idiopathic CTS.

Dr Huskisson paid no regard to the important medical records as to causation and what Mr Fleming suggests is of limited value. Professor Jayson questions whether there is any continuity of symptoms by reference to the medical notes and the Claimant's conduct, for example, when failing to mention his left hand symptoms when seeing the GP about his left shoulder. The Defendant's secondary case is that, if, however, there is continuity of symptoms Professor Jayson accepts that there might be a causal connection between the accident and the CTS but considers that there must in such circumstances have been a constitutional predisposition to CTS, the accident having accelerated what would have happened anyway by one to three years.

As to the second issue, namely the extent of disability, Mr Featherby submits that the Claimant's complaints of severe crippling pain, disability and fatigue are exaggerated. The description in the Incapacity for Work Questionnaire, to Ms Unsworth describing his pain as 10 out of 10 every day, to Professor Jayson and in his witness statement is in stark contrast to his performance in the DVD and in his driving. Furthermore his capacity to type as "Darg Vader" when playing computer games also throws light on his true ability. The account he gave of what the driving assessment examiner recommended to him as adaptations when at the same time passing him fit without them to drive a manual car, was not credible. Why should he demonstrate to Professor Jayson walking with a ski pole when that was not what he did? Ski poles would be, as Dr Huskisson agreed, quite inappropriate as they would place weight upon the hands and cause pain if leant upon. The special pellet box turned out to be a figment of the Claimant's imagination and his account to Professor Jayson as to pain killers was a fabrication. If he had the pills with him, as he said, there is no reason at all why he should not have shown them to Professor Jayson when asked. His ability to shoot, strip the air rifle, hold it steady and participate in competitions demonstrates his abilities. His evidence that he shot 80% of the time when sitting down and fired from a special table was manifestly untrue. As was the suggestion that he was sensitive to light. Mrs Darg's evidence as to how normal the Claimant looked and the embarrassment that that might cause when presenting as disabled, was bizarre and could only be explained by anticipating a video. Walking distances had been differently stated to different people. The Claimant was unable to memorise his own fabrications.

Mr Featherby said in his oral submissions that he was not necessarily submitting that the Claimant was dishonest as the past can become blurred through a continuing condition or indeed the making of a claim, but it remained the fact that the Claimant had exaggerated his level of disability.

The Claimant's submissions

Mr Richard Lynagh QC submitted that the accident was by far the most likely cause of the CTS. There was continuity of symptoms. Even though it was not referred to in the A&E notes (which are clearly inaccurate in some respects) the Claimant's wedding ring was cut off plainly because of the swelling in his hand or finger. The Claimant's wife confirmed there was swelling.

The GP's records do not record ongoing complaints about the hand but nor do they record that such problems did not exist. In any event the Claimant must have had symptoms prior to June 2003 when Mr Fleming diagnosed him as having CTS, yet no such symptoms are recorded anywhere in the GP's notes.

The Claimant's evidence that he did discuss his hand symptoms with the nurse and GP but was reassured that it would take time for the symptoms to resolve is reasonable and should be accepted. He did know in March, as Mrs Darg's letter demonstrated, that he was going to see Mr Fleming, a specialist, as part of the medico-legal process.

The letter of claim of 21 November 2002 and the further letter of 3 February 2003 are consistent with the lack of recovery and onset of CTS. The eight causation witnesses all support the Claimant's account of his complaints of the onset and persistence of symptoms and their continuing impact upon him after his return to work. It is important, as the Claimant himself said in evidence, to look at the whole picture not just the medical records.

The causation of swelling by laceration injuries leading to CTS is unusual, even statistically improbable, but Dr Huskisson's experience had shown that a swelling can develop from such an injury and he was firmly of the view that swelling and inflammation was the most likely mechanism for triggering the CTS.

Dr Huskisson relied for support of this proposition on the Claimant's age, sex, the fact that it was his non-dominant hand that was affected, the lack of any occupational risk factor and the lack of any relevant constitutional risk factor. Mr Fleming and Dr Wright agreed with Dr Huskisson as to the causative link.

Professor Jayson's evidence, Mr Lynagh submitted, was not as impartial as it should have been. The acceleration theory had only arisen in the joint statement and did not appear in any of the earlier nine letters or reports. There is no support for it at all, nor for his suggestion that psychiatric problems may have interfered with the Claimant's capacity to work until aged 65 in any event. This view was contrary to the agreed psychiatric evidence.

This was not a 'Popi M' case and the Court should find causation established. As to the extent of injuries, Mr Lynagh accepted that there were some inconsistencies in the Claimant's account but those did not affect the fundamental accuracy of his case. The records from Bath as well as Dr Huskisson's reports support the development of the condition and its seriousness. It would not be surprising if at the worst point of his condition in mid 2006, when CRPS had spread from his left hand to his right hand and feet, that his spirit would have been at its lowest.

The DVDs are a matter of impression. A number of the attacks on the Claimant's credibility were without substance. Thus the reference to spicing up by mentioning sutures, the significance of the Claimant's recollection as to the knife and what was on it, and the two statements, which were both entirely properly disclosed in March 2005 and June 2005, were without merit. The allegation that he had walked into Professor Jayson's room using his ski pole turned out to be entirely without substance. As was the assertion that he had left the ski pole behind in Starbucks when the later unedited film clearly showed that he still had it in his possession.

More important was the Claimant's good character, his work record and his post accident work record. He had never at any time purported not to be able to do something which the DVDs demonstrated he could do. The various causation witnesses and the shooting witnesses all supported his account of disability and there is nothing in any of the medical records to suggest that his symptoms had resolved to any significant degree. The Claimant does not shoot, as Mr Eslick's evidence confirmed, in every competition and should not be criticised for shooting, when he disclosed this to the examining doctors and was encouraged to continue it by Bath. His slow pace of walking, his habit of carrying items under his arms rather than in his hands and letting his wife carry things are all supportive of his account.

The fact that the Claimant is capable, for short periods of time, of adopting the postures necessary for competition shooting does not demonstrate that he has no or limited disability. He requires assistance getting up from the prone position, he uses a sling to carry his rifle around with him, he has difficulty in handling the pellets and is not always capable of stripping down his gun. He uses lighter equipment and is exhausted after he has shot.

The Court should recall, Mr Lynagh submitted, that the DVD only provided a snap shot of the Claimant's condition; it occurred on one day only. Insofar as the Claimant has given evidence which is somewhat inconsistent, it should be recalled that he may have felt the need to persuade people that he has a disability and perhaps emphasised too much. The fact remained that his symptoms were unpredictable, could flare up at any time. It is not surprising that in those circumstances he has felt unable to make any real attempts at finding work. In practice finding a job will be very difficult with his disabilities and he has no real skills apart from those of a mechanic which he can no longer use.

Conclusions

I have given careful consideration not only to the evidence which the Claimant gave but the manner in which he gave it. This is a particularly important task to perform when considering allegations of dishonesty in the presentation of a claim. I applied the same principles to the causation and Air Gun Club witnesses called on behalf of the Claimant. For reasons which I shall express later and to the extent which I shall set out, I came to the conclusion that in some respects the Claimant and his wife have exaggerated the extent of his disability. I should emphasise at the outset that I do not find that Claimant, or his wife, have been wholly dishonest in the presentation of his claim or that he has falsely pretended to have symptoms that do not exist. He has, and has suffered from, a genuine disability; he does on occasions, however, see and present the worst aspects of that disability as if they were the norm. I consider that the Claimant has made a better recovery than either he or his wife describes, or indeed than they consider he has made, because of their emphasis upon the extent of his disability when it is at its worst. I have taken these findings into account when assessing the causation issue as well as in determining the extent of his disability.

1. Causation.

I am satisfied that there was swelling at the time of the injury and that there was continuity of symptoms indicating the presence of carpal tunnel syndrome from the date of the accident or very shortly thereafter until the Claimant went to see Mr Fleming.

I accept the evidence of the Claimant and his wife that swelling was present when he attended the Royal London Hospital and that his ring was cut off because of that swelling. Absence of references to swelling in the A&E notes does not mean that it did not occur. The notes are clearly incomplete and in parts inaccurate and to place reliance upon their accuracy would in such circumstances be inappropriate. Furthermore the letter before action, written on the Claimant's behalf on 21 November 2002 specifically stated that he had had to have his wedding ring cut off due to swelling in his hand. The GP's note of 27 September 2002 refers to him 'not able to bend mid finger fully'. As the injury to that finger was to the distal phalanx, as opposed to the injury to the index finger which was to the middle phalanx, that statement is more consistent with swelling than it is with the consequences of the laceration to the tip of the middle finger itself.

I am also satisfied that there was continuity of CTS symptoms between the accident or shortly afterwards and the Claimant's visit to Mr Fleming. I have considered this aspect carefully not only because of my finding that the Claimant exaggerated part of his evidence but because of the apparent failure to complain of any relevant symptoms of the hand after 27 September 2002. In particular the failure to complain of the hand symptoms when the same limb was being considered in relation to the shoulder was on its face surprising and at least consistent with no such symptoms having been present. Nevertheless, I have concluded that there was continuity of symptoms for the following reasons. Firstly I accept that the Claimant was suffering from pins and needles, numbness, tingling and loss of grip as well as pain and weakness in his left hand during the relevant period. Specific complaint was made of tingling, a sign consistent with CTS on 27 September 2002 and it is unfortunate that Professor Jayson did not record this important entry in the GP records. Such a complaint is consistent with CTS even though there may be some overlap between such symptoms and the consequences of finger lacerations. Secondly the letter of claim of 21 November 2002 refers to the Claimant as having numbness and pins and needles and weakened grip strength. Thirdly there must have been, on any basis, the presence of symptoms some time before Mr Darg's visit to Mr Fleming in June 2003 yet the GP records contain no reference to any such complaint. It follows that the absence of such a recorded complaint does not indicate the absence of such symptoms. I accept the Claimant's account that he was at least initially complaining to the nurse and the GP about hand symptoms even if those were not recorded, but was reassured that it was all part of the healing process.

The surgery appears to have treated the problems with the shoulder as being distinct from the problems with the hand as indeed Dr Huskisson did in evidence. Thus a letter about the left shoulder was written on 12 June 2003 and a separate letter by a different GP written about carpal tunnel syndrome on 11 July 2003. It should be noted that Mr Darg was due to see Mr Fleming only a matter of days after the letter about his left shoulder was written.

Fourthly I am confirmed in my view of the continuity of symptoms by the evidence of the causation witnesses. Even though these were proofed in early 2005 and, as Mr Featherby submits, there is some element of conflation of dates, I am satisfied that this evidence honestly and accurately portrays the picture of the Claimant making complaints after the accident and on his return to work of pins and needles, numbness, tingling and other CTS symptoms. I see no reason to doubt the essential accuracy of these witnesses. In particular I found Mrs Keeble's evidence that he had recovered from the cuts but the other symptoms got worse to be honest and accurate and the evidence of Mr Milton to be particularly persuasive. He was the fleet manager, spoke to the Claimant immediately after the accident on the telephone and saw him on his return to work. He assisted the Claimant with jobs that he was finding difficulty in doing, and was aware of numerous examples of jobs he could not do which he had been able to do prior to his accident. In particular the problems carrying tools, handles, torches and heavy batteries due to weakness of grip or pain. The effect of these witnesses in particular, but the evidence of the causation witnesses overall, satisfy me that there was a continuity of symptoms. I am quite satisfied that this is not a case where there were no CTS symptoms until shortly before the Claimant saw Mr Fleming and that he then falsely attributed such symptoms to the accident seeing that as a suitable peg upon which to hang a dishonest claim. When Mr Darg told Mr Fleming that he had the symptoms of CTS since the accident he was in my judgment giving an honest account rather than a dishonest one.

These findings do not conclude the issue of causation as though Professor Jayson regarded this as being the most important point in view of his retreat on causation he still maintained the view that causation was medically improbable and hence Mr Featherby argued that where the Defendant's case was equally improbable the Claimant was unable to establish causation on the basis of 'The Popi M'. This is not in my judgment however a 'Popi M' case. It is not a case of exceptional improbability but one where it is open to the Court to consider the wide range of expert evidence before it and decide which it prefers on this issue. I have come to the conclusion that Dr Huskisson's evidence is to be preferred to that of Professor Jayson on the causation issue. Professor Jayson's account had in any event shifted towards that of Dr Huskisson by the time they had had their meeting and the joint statement was prepared. Dr Huskisson told me that he had experience of lacerations causing swelling and although there was no scientific literature to the effect that lacerations caused CTS, he considered that such a swelling may cause swelling in the wrist and the carpal tunnel and hence swelling leading to CTS.

I should add that I found the evidence of both Dr Huskisson and Professor Jayson helpful. They had both formed clear views as to the Claimant's disability but that did not diminish the value of their evidence in any material respect.

Dr Huskisson is supported in this opinion by the report of Mr Fleming which states 'carpal tunnel syndrome may well be precipitated by a hand injury with resulting hand swelling.' Mr Fleming is a hand surgeon. Furthermore the eventual opinion of Dr Wright also supported causation as did, upon one reading, Professor Jayson's contribution to the joint statement.

I therefore conclude that there was a swelling, that there was continuity of symptoms, and that the medical evidence satisfies me that the necessity for a CTS operation was brought about by the accident.

2. The extent of the Claimant's disability.

There are four important matters to take into account when assessing this issue. Firstly, the Claimant's good character, secondly his pre and post accident work record, thirdly the accepted fact that he suffered from carpal tunnel syndrome and thereafter CRPS, and fourthly that he is a man who is anxious about his state of health as his pre-accident history demonstrates.

The evidence about his character and work record is clear. He was a highly valued employee, regarded as an ambassador for the company and extremely competent. There is, as Mr Lynagh submits, no suggestion of any dishonesty on his part. On the contrary he was a well respected reliable employee with no history of work problems or sickness absences since he had been working for Vensons. This is confirmed by his return to work within a short time after the accident and his remaining at work until the day before his operation in September 2003. Even afterwards he sought to attempt to return to work. This is not a man who one would readily find has brought a dishonest claim.

Yet having taken these matters firmly into account and having listened to and read Mr Lynagh's arguments I am satisfied having heard the evidence and seen the DVDs, that the disability has been exaggerated. It is important to note that this is not a case where the Claimant has been filmed doing things which he had told doctors that he was unable to do. What the films demonstrate and in particular the shooting film which only relates to one day, is that he can do what he accepts that he can do with considerably greater facility than he has conveyed to others. He can without doubt get up and down from the prone position whilst shooting with ease and without assistance. He can hold a gun weighing up to 9¼lbs steady and fire it with great accuracy. He is able to manoeuvre the gun, load it, albeit with sometimes some fumbling, and is able, without a sling, to fire it from a kneeling position as well the prone position. The ease with which he can get up and down and the fact that he can shoot from a kneeling position and use his hands and arms as frequently as he does is not consistent with the picture that he painted to any of the doctors or in the questionnaires. Even Dr Huskisson expressed surprise at seeing what the Claimant could do on the DVDs.

It is clear that he can walk 500 yards to the school and 500 yards back without any apparent discomfort though he may be tired and experience some pain afterwards. He is able to drive for periods of time. In early 2006 he was able to undertake a driving assessment for 50 minutes driving a manual vehicle and performing ordinary driving manoeuvres. He was passed 'without hesitation' as fit to drive a manual car without any adaptations. I am afraid that I cannot accept the Claimant's account that in spite of the report which he wrote the driving assessment examiner told him that he should have a vehicle with automatic transmission and a high seat. It is possible that the Claimant was told by the driving assessment examiner that were his condition to deteriorate he might have to be so assisted, but there is no basis upon which such an employee, with a duty not only to honesty but also to road safety, could have given two such contradictory accounts in his written report and in verbal advice as the Claimant alleges.

The ability to shoot in the manner illustrated in the film and to drive to the extent which the Claimant is able to drive a manual vehicle using his feet and his hands is inconsistent with what he told Miss Unsworth about his pain level being 10 out 10, and inconsistent with his description in the questionnaire in early 2006 and also inconsistent, though somewhat less so, with the same Questionnaire completed on 2 July 2007. This stated inability to walk more than 50 metres without stopping or feeling severe discomfort or walking more than 10 yards before he feels discomfort and pain is inconsistent with what he was doing in shooting and driving, and in walking to and from school.

It is of course the case that his condition will fluctuate and that the CRPS he suffers from will on some occasions cause him disability. It is also the case that he is assisted to some extent when shooting and I credit the fact that on occasions he genuinely feels pain and discomfort in his hands and his feet. He is however an anxious man who in my judgment dwells on the more serious aspects of his disability and loses sight of what he in fact is able to do.

I find force in Professor Jayson's opinion that there will be continuing improvement particularly after settlement of the claim.

I acquit Mrs Darg of anticipating the DVDs by her reference to feeling embarrassment about the use of a disabled badge when her husband appeared to be normal. I am doubtful that either the Claimant or Mrs Darg actually knew they were filmed at any particular time even though they knew that it was possible that they might be filmed. I do not consider that the Claimant's performance in the films was tailored for the camera but represented what he was in fact able to do. As he had told Professor Jayson that he went shooting there is no reason to suppose that he wouldn't have been as potentially aware of being filmed whilst shooting, as at any other time. I do not however find Mrs Darg's evidence about her husband having calluses on his knuckles as a result of having to crawl upstairs convincing. There may have been occasions when he has felt particularly tired or in discomfort when he has not walked up the stairs but the evidence is that he generally does walk up and down the stairs.

I am also satisfied that the Claimant exaggerated the extent to which he uses a walking pole when he said to Miss Unsworth that he used one, when he demonstrated using one to Professor Jayson as I find that he did, and when saying that he had told Bath that he might use a second pole. He may well take out the ski pole when he goes for a particularly long walk but he does not use one when going for example the 500 meters there and back to the school. I accept that he may take a ski pole with him from time to time for psychological support but the extent to which he uses it is much more limited than the impression he gave to Miss Unsworth or Professor Jayson, whether for leaning on when stationary or for putting weight on when walking. Dr Huskisson as stated above agrees that a ski pole is not necessary, and as Professor Jayson said may in fact cause discomfort by its use.

The pellet box was not a special pellet box but one of the same kind as Mr Eslick used and purchased for the Claimant and himself. I am doubtful that the Claimant suffers any significant sensitivity to light and the fact that he can use his fingers in a reasonably dexterous fashion is demonstrated by his ability to type his Darg Vader entries.

I emphasise however that I am not suggesting that the Claimant does not suffer from some continuing level of disability from his CRPS. Indeed on the contrary I am satisfied that he does but, as stated above, as the films demonstrate, it is less serious than he has portrayed or indeed than he feels. I say this because I am satisfied that he is anxious and does feel the need to establish what he regards as a genuine and serious disabling illness. This desire has however taken him into giving accounts which he knows overstates the position, at least in the extent to which he suffers.

He is therefore entitled to damages on the basis that as a result of the accident he suffered lacerations, anxiety about HIV, symptoms of CTS, a decompression operation for CTS, and the development of CRPS. That has resulted in pain in his left hand spreading to his right hand and feet which varies in its intensity and may on some occasions at least cause him not inconsiderable discomfort. He takes pain killers to relieve this. This condition does not however stop him from driving, using a computer, walking, including over rough ground when shooting, and enjoying his hobby of shooting.

I accept Dr Huskisson's evidence that he has been fit for some part time work since the summer of 2007 and should have been seeking such work from that time. As I am satisfied that he has been exaggerating the extent of his disability by putting forward its worst moments as its norm, I prefer Professor Jayson's view that his working capacity is greater than that which Dr Huskisson considers it to be. In my judgment he is fit now to perform twelve hours work a week and will be able to return to a much greater level of work in the future. In view of the fact that his condition is likely to cause him occasional periods off work for a few days due to discomfort and his tiredness levels, because of his disability, may be greater than others, I do not consider it likely that he will ever return to full time work. I see no reason however why he should not in 3 years from now be able to find employment, for example in a driving job which will represent two-thirds of his pre-accident earning capacity. Future loss of earnings must therefore be calculated on that basis. As there has been no argument on the arithmetic of past loss of earning or future loss upon the basis of my findings I will hear such further argument when the judgment is handed down.

I am not invited to make any findings in relation to the care aspects of the claim, but it is clear from the evidence that only minimal care of the order of a few hours a week is required. There is no suggestion in the medical reports that the condition will deteriorate. I noted that the Claimant informed the hospital at Bath that he was independent in the process of bathing whereas he and his wife said that he needs help in and out the bath on most occasions. Again, the accurate situation in my view is that he might occasionally require some assistance but that normally he is independent in taking a bath.

Quantum.

The pain suffering and loss of amenity.

On the basis of my findings set out above I assess pain suffering and loss of amenity in the sum of £32,500.

Loss of earnings.

The Claimant should have returned to part-time work in July 2007. He is now able to work twelve hours a week and in three years time will be able to work in a job which will enable him to earn two-thirds of what he would now be able to earn had the accident not occurred.

I will hear further argument on both past loss of earnings and future loss of earnings when the judgment is handed down on 31 March 2009.

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