Smith v Tesco Plc & Ors

In a personal injury claim involving a pre-existing vulnerable spine, causation may be established where the evidence shows that an accident materially triggered the acute deterioration leading to the claimant’s condition. The court must assess the competing medical hypotheses against the factual evidence, including the timing and nature of symptoms. A theory that the claimant was already suffering from the relevant condition before the accident will be rejected where it depends on unreliable or contradictory records and unsupported assumptions. Expert evidence should address live issues in good time; advancing a new medical theory shortly before trial is unsatisfactory, particularly where it requires evidence outside the expert’s principal expertise.

The claimant, a Tesco shunter, alleged that he suffered a severe back jolt when driving a tug over a sunken fire hydrant at work. He claimed that the accident caused or materially contributed to acute cauda equina syndrome. Tesco disputed both the occurrence of the accident and causation; breach of duty was admitted if the accident was proved. The court tried the preliminary issues against Tesco and was not concerned with the separate claim against the Royal Free Hospital.

The central issues were whether the accident occurred as alleged and whether it caused or materially contributed to the claimant’s cauda equina syndrome.

1. Accident. The court accepted the claimant as an honest and broadly reliable witness. The surrounding evidence supported his account that he drove a tug, probably with a trailer attached, over the sunken fire hydrant and immediately reported an accident and back pain. The late and inconsistent accident report did not displace that conclusion.
2. Causation. The claimant had pre-existing back pain and symptoms consistent with a vulnerable lumbar disc, but he had no evidence of the red-flag symptoms of cauda equina syndrome before the accident. The court preferred the evidence of Mr Sakka, whose explanation was that the accident caused further disc protrusion or sequestration, followed by rapid progression to complete cauda equina syndrome.
3. The court rejected Mr Porter’s theory that the claimant was already in urinary retention before the accident. It depended materially on an inaccurate or unreliable clinical record, a disputed history, and a late hypothesis concerning bladder volumes and overflow incontinence. The theory was also at the boundaries of Mr Porter’s expertise and would properly have required earlier consideration and, if relied upon, urological evidence.
4. The claimant’s incontinence after leaving work was consistent with the syndrome having become complete by that time. His inability subsequently to pass urine did not establish earlier retention, since the evidence supported the conclusion that there was no urine left to pass.
5. On the balance of probabilities, the accident caused the claimant’s cauda equina syndrome.