Channel Islands Knitwear Company Ltd v. Hotchkiss (Jersey)  [2003] UKPC 45 (16 June 2003)
ADVANCE COPY

	Privy Council Appeal No. 68 of 2001

Channel Islands Knitwear Company Limited	Appellant
	v.
Iona Nicola Mackay Hotchkiss	Respondent

	FROM

	THE ROYAL COURT OF JERSEY
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	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 16th June 2003
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	Present at the hearing:-
			Lord Hoffmann
Lord Hutton
Lord Hobhouse of Woodborough
Lord Walker of Gestingthorpe
The Rt. Hon. Justice Tipping
		  	[Delivered by Lord Hoffmann]
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1. 	Nicola Hotchkiss is a talented young Scottish textile designer who has been unable to work for eight years.  In 1994, at the age of 30, when she was employed as senior designer by the Channel Island Knitwear Company Ltd (“the employers”) something went badly wrong with her neck.  She began to suffer severe pains which made it impossible for her to sit for long at a drawing board or computer. In these proceedings, she claims that the cause of her illness was the excessive hours which her employers had demanded of her and the poor conditions in which they had required her to work.  She alleges that they were negligent in not taking reasonable care to protect her from suffering harm.

2. 	The Royal Court (Sir Peter Crill sitting as Commissioner with jurats) found that the employers had been negligent but that the circumstances of her work had not caused her condition.  They had nevertheless materially contributed to that condition by exacerbating it.  On that basis the court on 18 July 2000 awarded her £538,577, including £128,296 for loss of past earnings and £282,000 for future loss of earnings over the rest of what would otherwise have been her expected working life.  The Court of Appeal decided that this award did not make sufficient allowance for the Royal Court's finding that her condition had not been caused by her work. They interpreted the finding to mean that even if the employers had not been negligent, her condition would at some stage have forced her to give up work and they made a finding that this would have been happened at the age of 45.  So they reduced the damages to £184,136.

3. 	Neither side was satisfied with this outcome.  They both agree that there was no evidence upon which the Court of Appeal could have found that she would have had to stop working at 45 or any other particular age.  The employers appeal and Miss Hotchkiss cross-appeals.  The employers say that the plaintiff's pleaded case and the evidence of her medical expert put forward a particular theory to explain how her condition had been caused by her work. Once the Royal Court had (rightly, say the employers) rejected that theory, there was no evidence upon which they could find her work had exacerbated a condition which had been caused in some other way.  Miss Hotchkiss, on the other hand, says that in the absence of any other acceptable explanation for what was the matter with her, the Royal Court should have held that her condition was caused by the employers' failure to take reasonable care to protect her from the very kind of injury which she actually suffered.

4. 	As there is no challenge to the finding of negligence, the facts found by the Royal Court may be briefly summarised.  Miss Hotchkiss graduated in 1987 from the Scottish College of Textiles in Galashiels with a BA (Honours) in Industrial Textile Design. The College is one of the foremost institutions of its kind in Europe; Miss Hotchkiss, while still at the College, had attracted the attention of two other designers who had gone on to work for the respondents in Jersey and they recruited her as an assistant designer immediately after graduation.  At about the same time she formed a relationship with a Jersey detective constable to whom she afterwards became engaged. She moved to Jersey for the start of a promising career.

5. 	There was a temporary setback at the end of 1989 when a reorganisation of the employers’ business led to her being made redundant.  She could no doubt have pursued her career on the mainland but her other attachment made her reluctant to leave Jersey.  She stayed and in 1992 was re-employed.  Her work consisted of designing clothes on paper, submitting the designs to the sales and marketing department and then translating the designs into computer code which could be read by the software of the knitting machines. This involved sitting in front of a computer at the employers' premises and using a mouse on a large tablet board. The company operated under considerable pressure and Miss Hotchkiss often worked long hours, starting at 8.30 am and frequently staying until 6.30 or later.

6. 	In February 1994 Miss Hotchkiss began to feel aches in the back of her head and pains behind the right eye and on the right side of her neck.  She put it down to stress – she was at the time the company’s only designer – and took pain killers.  But the aches and pains did not go away.  On 7 June 1994 she was on a business visit to Paris when the pain in the neck suddenly became excruciating and she realised that something must be badly wrong.  Returning to Jersey she still had severe constant pain, pins and needles in the right arm and a high temperature.  On 13 June she saw her general practitioner, Dr Jennifer Haley, who suspected a virus; possibly viral encephalitis.  She referred her to Jersey General Hospital where the consultant recommended a lumbar puncture to obtain spinal fluid which could be tested for viral or other infection.

7. 	Miss Hotchkiss, apparently on family advice, decided not to have a lumbar puncture.  Instead she discharged herself and flew to Glasgow, where she saw Mr Walker-Naddell.  He was a practitioner of alternative orthopaedic medicine who specialised in the manipulation of slipped discs. He had written a book on the subject as well as a colourful autobiography describing his military exploits in the Second World War.  When Miss Hotchkiss saw him, he must have been over 80.  Mr Walker-Naddell diagnosed slipped discs and manipulated her neck vertebrae on a number of occasions, sometimes after giving her a local anaesthetic by injection.  She said that she felt temporary relief but the treatment did not make her better.  He told her that she should not do computer work because it put a strain on her neck.

8. 	On her return to Jersey, Miss Hotchkiss was put under pressure by the employers to return to work as soon as possible.  At first, although in pain and discomfort, she worked at home on her sketches.  In the middle of August 1994 (after a holiday in the Caribbean) she returned to the company’s offices to programme the 1995 autumn collection on the computer.  She worked long hours for about 14 weeks and her discomfort was aggravated by the fact that she could not get her legs underneath the desk.  She had to sit at an angle with her head constantly turned to the right to see the screen while she operated the mouse with her right hand. The pain was such that in November 1994 she returned to Glasgow to see Mr Walker-Naddell, who again told her to stop working on the computer.  The company’s directors refused to accept a medical certificate that she needed rest and by the end of January 1995 she was in a state of collapse from pain and exhaustion.

9. 	The Royal Court found (at CB pp 248-249) that, putting the matter shortly, the employers had behaved with a callous lack of consideration: 
“Almost nothing was allowed to stand in the way of keeping the machines working, certainly not the welfare of the plaintiff. Her requests for help and better furniture were ignored and not one of the directors ever enquired after her health.”

10. 	The Court found (at CB p 261) that the plaintiff's excessive workload and poor working conditions were a breach of the employers' duty at common law and that the likelihood of possible damaging consequences to the plaintiff was foreseeable.  These findings are not challenged.

11. 	On 4 February 1995 Miss Hotchkiss resigned and she has since been unable to work.  Her condition has remained more or less unchanged.  She had an MRI scan in September 1995 which did not lead to a diagnosis.  She has been to chiropractors and physiotherapists as well as orthopaedic specialists.  But she still suffers from constant headaches and pains behind the right eye and on the right side of the neck.  She has pins and needles in the right arm and a choking sensation on the right side of the throat. Her engagement to the Jersey policeman was broken off and she has retreated to a family cottage in Argyllshire where she lives alone.

12. 	The Order of Justice originally pleaded the nature of the plaintiff's injury in accordance with the advice received from Mr Walker-Naddell, that is, that Miss Hotchkiss had suffered slipped discs in the neck and lower back causing muscular spasm in the neck.  This injury was alleged in some unspecified way to have been caused by her work.  But neither of the medical experts called at the trial supported the slipped disc theory.  Dr Reardon, who was called for the plaintiff, said the history did not fit with a slipped disc; “disc herniation occurring during the course of the work carried out by Miss Hotchkiss would be most unusual”: p 1867. Mr Ransford, called for the defendants, had gone further than either Mr Walker-Naddell or Dr Reardon thought necessary and had x-ray photographs taken of Miss Hotchkiss's spine.  These revealed nothing wrong with her discs.  He agreed with Dr Reardon; “You are telling me” was his comment on this part of his opinion.

13. 	But the experts were not able to agree on very much else.  Dr Reardon's theory was that sitting long hours at the computer with her head inclined to the right had weakened the muscles in Miss Hotchkiss's neck.  As a result, they were not strong enough to support the vertebrae properly and the bones at the base of the neck had slipped out of position (“subluxed”).  This had happened in June 1994, causing the first onset of acute pain which Miss Hotchkiss had suffered in Paris.  Afterwards, sitting at the computer for long hours had made things worse.  The bones had slipped even further out of position and torn the ligaments (or “capsules”) in which they are encased.  When the tears healed, they formed scar tissue and it was the presence of this scar tissue in her ligaments which was the cause of the continuing pain.  So everything had been caused by working at the computer.  He said (CB 67) that there was no evidence of any significant previous injury: “I can't see any other reason than her work caused this”.

14. 	Mr Ransford, a recently retired consultant in orthopaedics at University College Hospital and a specialist in spinal disorders, was incredulous.  He had never come across a diagnosis such as Dr Reardon's and said that there was no trace of such a theory in medical literature.  Dr Reardon, in cross-examination, could not refer to any published studies supporting his diagnosis but said (at p 117) that “there are certain things that we know happen”.  Mr Ransford said that muscles do not “weaken” as a result of sitting at a computer.  Again, Dr Reardon (at CB 117) could offer no support for his theory:
“Q.	Are you able to substantiate your opinion that prolonged static posture … of itself leads to muscle weakness by reference to published studies?

A.		I have got nothing here particularly, to be perfectly honest, but there is work.”

15. 	He then referred to studies by ergonomists which showed that “if you do a certain job then you are more at risk of developing neck problems”.
16. 	Mr Ransford said that he had certainly never heard of joints slipping out of position except as a result of some fairly severe trauma. The x-ray photographs showed no dislocation or “subluxation” of the kind suggested by Dr Reardon and the capsules appeared intact.  In Mr Ransford's opinion, the whole of Dr Reardon's theory was unsupported by evidence.

17. 	Mr Ransford drew a different conclusion from the x-ray photographs of Miss Hotchkiss's neck.  They showed an unusual deformation by which, contrary to the normal backward concave curve of the upper spine, Miss Hotchkiss had, when inclining her neck forward, a sharp forward bulge variously described as a “reverse cervical lordosis” or “kyphosis”.   In Mr Ransford's view, the existence of this bulge was a complete explanation of the symptoms.  It made it a strain for Miss Hotchkiss to balance her head upon her neck and so caused headaches, muscle spasm and neck pains. 

18. 	What Mr Ransford could not explain was how the reverse cervical lordosis had come about.  He thought it was unlikely to have been congenital; that would not readily explain the onset of pain in 1994.  A common explanation for such a deformation was trauma; perhaps a severe whiplash injury in a car accident.  But although Miss Hotchkiss had been involved in two trivial motor car accidents, neither could conceivably have caused such an injury. So trauma appeared to be ruled out.  Mr Ransford said that the most likely cause was a viral infection of some kind; the symptoms Miss Hotchkiss showed in June 1994, coupled with some enduring symptoms such as a choking feeling in the wind-pipe, suggested a viral attack.  But even this was little better than a guess.  The one point on which Mr Ransford was insistent was that deformation of the bones in the neck could not be caused by sitting at a computer, for however long and however unsuitable the posture. The shape and position of bones could be altered only by disease, trauma or pressure applied over lengthy periods, like the binding of Chinese girls’ feet.

19. 	Dr Reardon, confronted with the x-ray photographs, agreed that they showed a severe reverse lordosis which he had not detected (although he said that he had been looking for one in a different place).  He accommodated its existence within his own theory by saying that it was a secondary consequence of the damage caused by subluxation of the joints lower down, at the base of the neck.  He appeared (at least at one stage) to accept (at CB p 105) that the reverse cervical lordosis could account for Miss Hotchkiss's symptoms:
“Q.	If ... you were told that someone has a reverse of the normal cervical lordosis, what kind of symptoms would they show?	

A.		They would probably have pain very much like Miss Hotchkiss …”

20. 	But, he said, one had to find the reason for the reverse cervical lordosis.  And in his opinion it was a consequence of the subluxation of the joints at the base of the neck.

21. 	The Commissioner raised with both witnesses the question of whether the working conditions could have exacerbated Miss Hotchkiss's injury.  Dr Reardon said that they could: conditions pre-June 1994 caused the initial subluxation and conditions thereafter made it worse. But the original cause was work; he could think of no other reason why Miss Hotchkiss's joints should have “subluxed”.   Mr Ransford said that it depended upon what one meant by exacerbate.  Sitting at the computer could not have made the reverse cervical lordosis worse, any more than it could, in his view, have caused it in the first place.  Dr Reardon (CB 67) agreed that work could not have exacerbated the reverse cervical lordosis. But Mr Ransford said that working at the computer could certainly have made the immediate symptoms worse.  A person with a reverse cervical lordosis who works long hours at a computer will suffer greater pain than one who puts less strain on her neck.

22. 	After summarising the evidence of the two experts, the Commissioner said (at para 61):
“In short, we were left with this position:

1.		Mr Ransford could not say positively that the condition of the plaintiff could not be caused by the working conditions. On the other hand he said that the plaintiff's condition was exacerbated by them.

2.		Dr Reardon had no doubt that the working conditions had caused the plaintiff's condition.”

23. 	Having stated their position in this form, the Royal Court went on to say (para 62):
“In our view there is insufficient evidence to remove a doubt that the plaintiff had an existing condition, whether congenital or not, and, accordingly, we find that whilst her condition was not caused by the working conditions, they contributed and, indeed, exacerbated it.”

24. 	This conclusion is not very happily phrased; the reference to “remove a doubt” suggests the criminal rather than the civil standard of proof and Mr Coppel on behalf of the plaintiff complained that the Royal Court must have misdirected itself.  But their Lordships cannot accept that so experienced a judge as the Commissioner misunderstood the law on this point.  The court had given a preliminary ruling, before dealing with the quantum of damages, which is recorded at paragraph 67 of the judgment:
“We told counsel ... that we had concluded that the working conditions had exacerbated the plaintiff's condition, although we were not satisfied that they had caused it.”

25. 	Their Lordships take the court to have meant that they were not satisfied on a balance of probability.  Against the background of their statement of the positions of the two experts, it indicates that the court was unwilling to accept Dr Reardon's theory of tired muscles causing subluxation of joints, but accepted instead the view it attributed to Mr Ransford, namely that the plaintiff's condition was exacerbated by her working conditions.

26. 	Their Lordships are bound to say that in their opinion the view attributed to Mr Ransford does not accurately reflect what he said in evidence.  First, in his opinion the “condition of the plaintiff” was that she had a reverse cervical lordosis.  Once she had acquired that condition “everything after that was absolutely predictable” (CB 179A).  It accounted for her symptoms. Secondly, he could not say what had caused the condition but was quite positive that it could not have been caused by sitting at a computer. Thirdly, he did not accept that the condition could have been exacerbated by work.  On this point, as their Lordships have noted, Dr Reardon agreed. 

27. 	The notion that Mr Ransford's evidence provided support for a finding that the condition had been exacerbated by work may have been based upon two possible misunderstandings of what he said.  One is a passage in which he was invited to speculate upon the possibility that the reverse lordosis or “kyphosis”  may have been congenital. He was asked by the Commissioner (at CB p 175) whether this may have been the case:
“Q.	Is that condition - is that something she was born with?

A.		She does have one slightly small vertebra in her neck but I doubt if she was born like that.  There's not enough congenital anomalies to account for it, so I think it has been acquired, sir.

Q.		So it is acquired rather than congenital?

A.		Yes.”

28. 	In cross-examination, he was asked (at CB p 227), assuming the kyphosis to have been congenital, why it could suddenly have started hurting in 1994 because of her working conditions:
“Q.	But why do they suddenly start hurting?  Why does something not hurt yesterday and suddenly hurt tomorrow? What causes that pain?

A.		It is stresses and strains of that particular articulation.  It suddenly becomes painful.

Q.		And would that particular articulation be exacerbated by very poor working conditions and by poor posture on a regular basis triggering it?

A.		It could be exacerbated by lots of things.

Q.		Could it be by what I have just said?  It must be, surely?

A.		If it was a congenital thing and started -- it had to start some time and it happened to start then.

Q.		Could the kick-starting, if you like, of the condition have been caused by a very poor work station, a very poor posture and appalling working position, assuming that's right?

A.		It could have been caused.”

29. 	It seems to their Lordships that all Mr Ransford was there saying was that on the assumption, which he did not accept, that the reverse lordosis had been present since birth, the onset of pain could have been triggered in various ways and Miss Hotchkiss's poor working conditions was one of them.  This provides little support for a finding on a balance of probability that the working conditions exacerbated her condition.

30. 	The other possible basis for misunderstanding was one which Mr Ransford was several times at pains to try to avoid.  For example (at CB ps 198-199):
“Q.	... if the pain continues and that pain is more severe as a result of the way in which she is sitting or the way in which she is working, then that is going to not just give her pain but is actually going to worsen her condition; is that fair?

A.		Not worsen the pathology.  Worsen the pain she is getting from it.  Like if you have got a sore back and I made you dig the garden, you would be sorer at the end of it.

Q.		Yes, but if you carry on digging the garden for hours on end, even though you are sore, you are not going to get any better, are you?	

A.		You are going to be worse.

Q.		You are going to be worse?	

A.		Yes.

Q.		The pain is going to be worse and the condition is going to be worse?	

A.		The condition is not worse, the pain is worse.  The condition is what she has got.

THE COMMISSIONER:	Yes, that is the pathology.

A.		Yes.”

31. 	Later, (CB 223-224) counsel went back to the same question:
“Q.	Looking at her pain and suffering as it was, if she continued to work in a poor posture at her station, for whatever reason, that would make the situation worse; is that fair?		
A.		It would make her pain worse.

Q.		Yes, and would it over a period of time, say a year or two, could it have any effect on her non-boney side of her neck, her ligaments, her joints, anything like that ---

A.		No.

Q.		--- just a continuation.  None at all?	

A.		No.

THE COMMISSIONER:	Her pain would be much worse, but her pathology would not change, is that what you are saying?

A.		Correct, sir.”

32. 	After this crisp summary of Mr Ransford's position, the Commissioner's comment to Dr Reardon two days later comes as something of a surprise.
“THE COMMISSIONER:  If she had kyphosis, which you say she didn't but the other medical expert says she had, would her work have exacerbated the kyphosis?	

A.		No.

Q.		It would not.  Well, that is directly different from what the other medical expert said.  But, I mean, that's the way of medical experts.”   

33. 	The Court of Appeal also appears to have conflated the distinction Mr Ransford sought to draw between exacerbation of the condition (i.e. the reverse cervical lordosis) and the pain caused by that condition.  At paragraph 10 of the judgment,  they said:
“When asked about the relationship between the respondent's neck condition and her work, Mr Ransford stated that her work could not have caused her reverse cervical lordosis but would have exacerbated it.  His evidence on this point was clarified by an exchange between the Commissioner and Mr Ransford in the following terms: ‘Her pain would be much worse, but her pathology would not change, is that what you are saying?  

A.		Correct.’”
34. 	At paragraph 30 (at CB p 305) the Court of Appeal said that the respondent had secured a finding from the Royal Court “linking at least her symptoms, if not her pathology, to her working conditions”.  It was, said the Court, implicit in such a finding that Miss Hotchkiss's neck was “going to start hurting at some stage” even if the employers had not been in breach of their duty of care.  So they made a finding, unsupported by evidence, that it would have started hurting when she was 45.  The fact that it actually started at 30 was caused by her working conditions.

35. 	Their Lordships doubt whether the finding of exacerbation by the Royal Court can be interpreted as meaning that the onset of symptoms was accelerated, whether by 15 years or any other period.  But they also consider that even if it could, there would have been no evidence to support such a finding.  Properly understood, Mr Ransford’s evidence provided no basis for a conclusion that Miss Hotchkiss’s working conditions had been responsible, in whole or in part, for any symptoms which she suffered after leaving employment.  When he said that poor working conditions exacerbated the pain but not the condition, it seems to their Lordships clear that he meant that they exacerbated the pain which she experienced at the time.  But they caused no change to her condition which could have been responsible for the pain which she suffered after she ceased to work in such conditions, or at any rate after a short period for recovery.  

36. 	Mr Coppel submitted that, as a matter of law, Miss Hotchkiss was entitled to succeed on the ground that the employers had been unable to explain how her condition had come about.  Mr Ransford had frankly said that she was a medical enigma.  His best bet was that the reverse lordosis had been caused by a viral infection, but even this was rather vague: it was not viral encephalitis or any other well known viral disease and the nature of the virus and the way it had affected her brain, muscles and bone structure was obscure.  On the other hand, said Mr Coppel, the evidence of the ergonomists was that if you sit at a computer for long periods in a poor posture, you are very likely to have trouble with your neck. This, he said, raised an evidential burden upon the employers which they had failed to discharge.   In the absence of any other explanation, the court should have inferred that the trouble was caused by the conditions of work.

37. 	It may well be the case that if there had been no medical evidence of what was causing the plaintiff's symptoms, the evidence of the ergonomists would have carried the day.  If one makes the artificial assumption that they gave their evidence first and the court then made an interim ruling, the effect may have been to raise an evidential burden on the employers to adduce evidence about some other way in which the condition might have been caused. But that does not mean that they were obliged to provide a complete explanation. It was sufficient to leave the court unable to say that on a balance of probability the condition had been caused by the negligent conduct. Other causes (such as a viral infection) were more or equally likely. Their Lordships consider that any evidential burden upon the employers was discharged by their adducing the evidence of Mr Ransford which, if accepted, showed that the plaintiff suffered from a reverse cervical lordosis which accounted for the neck troubles she was experiencing and was not itself attributable to her working conditions.  The only rival explanation for the plaintiff having a condition which five years of rest had not alleviated was Dr Reardon's theory which the court plainly did not accept.  So the Royal Court would have been entitled to find that she had not discharged the burden of proof.  It was not however entitled to find that her working conditions had exacerbated a condition which had previously or concurrently been caused in some other way.  That was neither pleaded nor supported by evidence.  The judgment for the plaintiff on this ground must therefore be set aside.

38. 	There remains, however, the finding that the conditions of employment exacerbated the symptoms which Miss Hotchkiss suffered during the year before she resigned in February 1995. This was not separately pleaded or considered in the judgment of the Royal Court but their Lordships consider that it falls within the findings made by the court on the footing that the greater includes the less.  In any case, their Lordships consider that such a conclusion follows inevitably from the court's findings about the conduct of the employers and the evidence of Mr Ransford.  For this damage the plaintiff is entitled to compensation.  Neither of the parties wanted the determination of the quantum to be remitted to the Royal Court; their Lordships were invited to do so and they consider that the plaintiff is entitled to £10,000.

39. 	Their Lordships cannot part with this case without expressing their dismay that Miss Hotchkiss, found by the Royal Court to be a conscientious and dedicated employee shamefully treated by her employers, should emerge from nearly 7 years of expensive and no doubt stressful litigation in three courts with less than a fiftieth of the damages originally awarded and, in view of the success of the employers before the Board, the likelihood of a substantial liability for costs.  Whatever may have been the obscure cause of her lamentable condition, her sufferings and her needs have been and are the same.  But in Jersey as in England it is an essential condition for obtaining the relatively generous compensation awarded by the law of negligence that, save in the most unusual case, the plaintiff should satisfy the court on a balance of probability that but for the defendant's negligent conduct she would not have suffered her injuries.  This, on the evidence, Miss Hotchkiss failed to do.  

40. 	Their Lordships will humbly advise her Majesty that the appeal should be allowed and an award of £10,000 by way of general damages substituted.  Their Lordships will hear further submissions on the question of costs.