LORDS DECISIONSLORDS DECISIONS >>LORDSLORD NICHOLLS OF BIRKENHEAD LORD STEYN LORD HOPE OF CRAIGHEAD LORD CLYDELORDS OF APPEAL FOR JUDGMENTLORD BROWNE-WILKINSONLORDS,LORD HOPE OF CRAIGHEAD. FOR THE REASONS WHICH HE GIVES I WOULD DISMISS THE APPEAL.LORD NICHOLLS OF BIRKENHEADLORDS,LORD HOPE OF CRAIGHEAD. FOR THE REASONS HE GIVES I TOO WOULD DISMISS THIS APPEAL.LORD STEYNLORDS,LORD HOPE OF CRAIGHEAD. FOR THE REASONS HE HAS GIVEN I WOULD ALSO DISMISS THE APPEAL.LORD HOPE OF CRAIGHEADLORDS,LORD ORDINARY, LORD DAWSON, IN JUNE 1995 THE CHIEF CONSTABLE HAD ADMITTED LIABILITY FOR THE ACCIDENT. THE ISSUE BETWEEN THE PARTIES ON THE PLEADINGS WAS FOCUSSED BY THE APPELLANT'S AVERMENTS ON THE ONE HAND THAT MS IS A CONDITION WHICH MAY BE PROVOKED BY TRAUMA AND THAT THE TRAUMA TO HIS HEAD, NECK AND SHOULDERS IN THE ACCIDENT OF APRIL 1990 HAD RESULTED IN THE DEVELOPMENT OF HIS MS, AND BY THE CHIEF CONSTABLE'S AVERMENTS ON THE OTHER THAT MS IS NOT A CONDITION THAT IS CAUSED OR INFLUENCED BY TRAUMA AND THAT ANY TRAUMA SUSTAINED BY THE APPELLANT IN THE ACCIDENT OF APRIL 1990 DID NOT CAUSE HIS MS.LORD ORDINARY PRONOUNCED AN INTERLOCUTOR IN FAVOUR OF THE APPELLANT AND AWARDED HIM £547,250 AS DAMAGES. THE CHIEF CONSTABLE RECLAIMED, AND ON 5 MARCH 1998 THE FIRST DIVISION (THE LORD PRESIDENT, LORD PROSSER AND LORD CAPLAN) ALLOWED THE RECLAIMING MOTION WITH THE RESULT THAT THE APPELLANT'S AWARD WAS REDUCED TO £1,500 WHICH WAS AGREED AS THE SOLATIUM DUE TO HIM FOR THE INJURIES WHICH HE RECEIVED IN THE ACCIDENT: 1998 S.C. 548. THE APPELLANT HAS NOW APPEALED TO YOUR LORDSHIPS' HOUSE AGAINST THE FIRST DIVISION'S INTERLOCUTOR.LORDSHIPS IN THIS APPEAL. THE FIRST IS THAT, WHILE THE LORD ORDINARY'S OPINION PROVIDES A USEFUL AND ACCURATE SUMMARY OF THE FACTUAL BACKGROUND AND OF THE EVIDENCE GIVEN BY THE EXPERT WITNESSES, IT LACKS ANY ANALYSIS OF THEIR EVIDENCE. MUCH OF IT WAS THE SUBJECT OF DETAILED CRITICISM BY THE WITNESSES ON BOTH SIDES. BUT IT IS IMPOSSIBLE TO TELL WHAT THE LORD ORDINARY MADE OF THOSE CRITICISMS AS HE HAS FAILED TO EXPLAIN THE GROUNDS ON WHICH HE DECIDED TO ACCEPT SOME PARTS OF THE EVIDENCE AND TO REJECT OTHER PARTS, AS HE MUST HAVE DONE IN ORDER TO FIND THE APPELLANT'S CASE PROVED. THERE IS NO INDICATION THAT HE BASED HIS DECISION TO ANY EXTENT ON THE DEMEANOUR OF THE WITNESSES WHEN THEY WERE GIVING EVIDENCE, ALTHOUGH HE NOTED - AS IS INDEED OBVIOUS FROM THE TRANSCRIPT - THAT PROFESSOR BEHAN AND PROFESSOR COMPSTON IN PARTICULAR BOTH HELD STRONG VIEWS ON THE POINTS WHICH WERE AT ISSUE AND WERE AT PAINS TO EXPRESS THEM AT CONSIDERABLE LENGTH IN ANSWERS WHICH OFTEN BORE LITTLE RELATIONSHIP TO THE QUESTIONS WHICH HAD BEEN ASKED. THE EXERCISE OF HIS JUDGMENT WAS WHOLLY DEPENDENT ON AN EVALUATION OF THE SUBSTANCE OF ALL THE EXPERT EVIDENCE, BUT THERE IS NO DISCUSSION OF THESE MATTERS IN HIS OPINION. THE FIRST DIVISION HELD THAT THE LORD ORDINARY'S DECISION AS A WHOLE WAS UNSATISFACTORY AND, APPLYING LORD THANKERTON'S WELL-KNOWN DICTA IN THOMAS V. THOMAS 1947 S.C.(H.L.) 45 AT P. 54 AND LORD KEITH OF KINKEL'S OBSERVATIONS IN STEPHEN V. SCOTTISH BOATOWNERS MUTUAL INSURANCE ASSOCIATION 1989 S.C.(H.L.) 24 AT P. 61, THEY DECIDED THAT IT WAS OPEN TO THE INNER HOUSE TO REVIEW THE WHOLE MATTER. THE APPELLANT ACCEPTS THAT THEY WERE ENTITLED TO REACH THIS VIEW.LORD PRESIDENT. THIS HAS MORE THAN REDRESSED THE ABSENCE OF DETAILED REASONING IN THE OPINION OF THE LORD ORDINARY. GREAT CARE HAS BEEN TAKEN TO EXPLAIN THE ANATOMY AND PHYSIOLOGY WHICH FORMED THE BACKGROUND TO THE DEBATE BETWEEN THE EXPERT WITNESSES AND TO IDENTIFY AND ANALYSE THE GROUNDS ON WHICH THE PROPOSITIONS ON EACH SIDE OF THE ARGUMENT WERE BASED. THE COMPLEX NATURE OF THESE ISSUES IS UNDERLINED BY THE FACT THAT, ALTHOUGH THE JUDGES WERE UNANIMOUS IN THEIR DECISION TO ALLOW THE RECLAIMING MOTION, THEY GAVE DIFFERENT REASONS FOR REACHING THIS VIEW. IN THE RESULT IT HAS BEEN MUCH EASIER THAN IT MIGHT OTHERWISE HAVE BEEN FOR YOUR LORDSHIPS TO IDENTIFY AND EXPLORE THE POINTS WHICH LIE AT THE HEART OF THIS APPEAL.LORDS WITHOUT THE LEAVE OF THE INNER HOUSE AGAINST A JUDGMENT ON THE WHOLE MERITS OF THE CAUSE. THE DECISION OF THE INNER HOUSE IN THIS CASE IS SUCH A JUDGMENT. THE RIGHT OF APPEAL TO THIS HOUSE MAY BE DIRECTED TO ISSUES OF FACT AS WELL AS ISSUES OF LAW. AS LORD REID SAID IN BENMAX V. AUSTIN MOTOR CO. LTD. [1955] A.C. 370, 375, APART FROM CASES WHICH ARE EXPRESSLY LIMITED TO QUESTIONS OF LAW, AN APPELLANT IS ENTITLED TO APPEAL AGAINST ANY FINDING, WHETHER IT BE A FINDING OF LAW, A FINDING OF FACT OR A FINDING INVOLVING BOTH LAW AND FACT. APPEALS FROM THE COURT OF SESSION ON ISSUES OF PURE FACT ARE UNUSUAL. THE HOUSE WILL ONLY REVIEW CONCURRENT FINDINGS OF FACT IN THE OUTER AND INNER HOUSE OF THE COURT OF SESSION WHICH DEPEND ON AN ASSESSMENT OF CREDIBILITY BY THE TRIAL JUDGE IF IT CAN BE CLEARLY DEMONSTRATED THAT THE FINDINGS ARE ERRONEOUS: ISLIP PEDIGREE BREEDING CENTRE AND OTHERS V. ABERCROMBY 1959 S.L.T. 161, 174 PER LORD REID; BRODIE V. BRITISH RAILWAYS BOARD 1972 S.L.T. (NOTES) 37, PER LORD KILBRANDON. BUT THAT RULE OF PRACTICE CANNOT BE APPLIED IN THIS CASE, AND THE APPEAL HAS BEEN QUITE PROPERLY TAKEN ON WHAT IS UNDOUBTEDLY AN ISSUE OF PURE FACT. THE MATTER IS FURTHER COMPLICATED BY THE ABSENCE OF ANY DETAILED REASONING IN THE OPINION OF THE LORD ORDINARY. IN THE RESULT THE DECISION OF THE INNER HOUSE - WHICH IS BASED ENTIRELY ON THE PRINTED EVIDENCE - MUST BE REGARDED AS OPEN TO SCRUTINY BY YOUR LORDSHIPS IN THE SAME WAY AS IF IT HAD BEEN TAKEN AT FIRST INSTANCE AND WAS AT LARGE FOR CONSIDERATION BY THE APPEAL COURT.LORDSHIPS IN THIS HOUSE. LORD STEYN POINTED OUT IN SMITH NEW COURT SECURITIES LTD. V. CITIBANK N.A. [1997] AC 254, 275 THAT THE PRIME FUNCTION OF THE HOUSE OF LORDS IN ENGLISH APPEALS IS TO REVIEW QUESTIONS OF LAW OF GENERAL PUBLIC IMPORTANCE. HE SAID THAT IT COULD NOT PROPERLY DISCHARGE THAT FUNCTION IF IT OFTEN HAD TO HEAR APPEALS ON PURE FACT. SIMILAR CONSIDERATIONS REQUIRE THAT REGARD MUST BE PAID TO THE NEED FOR ECONOMY IN THE TIME TAKEN IN SCOTTISH APPEALS TO PRESENT ARGUMENTS ON QUESTIONS OF PURE FACT. WITH THAT IN VIEW, THEIR LORDSHIPS TOOK THE UNUSUAL STEP OF HOLDING A PRELIMINARY HEARING IN THIS CASE TO DISCUSS THE PROCEDURE WHICH WAS TO BE ADOPTED IN THE PREPARATION OF THE APPEAL.LORDSHIPS WERE GREATLY ASSISTED BY THE QUALITY OF THE WRITTEN CASES IN THEIR PREPARATION FOR THE HEARING OF THE APPEAL AND IN THEIR CONSIDERATION OF THE CASE AFTER THE CONCLUSION OF THE ORAL ARGUMENT.LORD PRESIDENT OBSERVED AT P. 558, THE MATTERS IN DISPUTE BETWEEN THE PARTIES ARE MEDICAL. THEY WERE DEBATED WITH THE WITNESSES AGAINST THE BACKGROUND OF A SHARED KNOWLEDGE OF THE RELEVANT ANATOMY AND PHYSIOLOGY AND OF THE NATURE OF THE MEDICAL CONDITIONS WHICH WERE BEING DISCUSSED. THE LORD ORDINARY WAS AT A DISADVANTAGE IN DEALING WITH THESE AGREED MATTERS BECAUSE HE WAS NOT PROVIDED WITH AN ELEMENTARY TEXT TO GUIDE HIM THROUGH THESE CHAPTERS OF THE EVIDENCE. FOLLOWING A SUGGESTION WHICH WAS MADE AT THE PROCEDURAL HEARING, A DESCRIPTION OF THE ANATOMY AND PHYSIOLOGY OF THE CENTRAL NERVOUS SYSTEM, A COPY OF THE RELEVANT CHAPTERS IN RICHARD S. SNELL'S CLINICAL NEUROANATOMY FOR MEDICAL STUDENTS, 4TH EDITION, AND AN EXCERPT FROM GRANT'S METHOD OF ANATOMY WERE INCLUDED IN THE APPENDIX. BUT THE BEST GUIDE TO THE MEDICAL BACKGROUND IS TO BE FOUND IN THE LORD PRESIDENT'S OPINION AT PP. 558-563 WHERE HE SET OUT HIS UNDERSTANDING OF THESE MATTERS WITH GREAT CLARITY AND COMMENDABLE ATTENTION TO DETAIL.LORD PRESIDENT WHICH WERE COMMON GROUND AMONG THE WITNESSES.LORD PRESIDENT PUT IT AT P. 562, THE DISPUTE IS AS TO WHETHER TRAUMA CAN "TRIGGER" IT. MS OCCURS AMONG CERTAIN RACES AND NOT OTHERS, AND ONLY CERTAIN PEOPLE WITHIN THESE RACES ARE LIABLE TO DEVELOP IT. THEY WERE REFERRED TO BY THE WITNESSES AS "POTENTIAL DEMYELINATORS". THE CONSENSUS VIEW IS THAT A GENETIC FACTOR IS INVOLVED, AND THAT THOSE WITH THE NECESSARY GENETIC CHARACTERISTICS BECOME POTENTIAL DEMYELINATORS DUE TO A MICROBIAL OR VIRAL INFECTION IN THEIR CHILDHOOD. NOT ALL POTENTIAL DEMYELINATORS DEVELOP SYMPTOMATIC MS. FOR MANY THE REASON WHY THEY BECOME SYMPTOMATIC IS A MYSTERY, AS ITS CLINICAL MANIFESTATION STARTS WITHOUT BEING PRECEDED BY ANY OBVIOUS EVENT WHICH COULD BE SAID TO HAVE CAUSED OR "TRIGGERED" IT. IT APPEARS TO BE ACCEPTED BY THE EXPERTS THAT EXPOSURE TO A VIRUS IS THE MOST COMMON TRIGGER. THE AREA OF DISPUTE IS WHETHER SYMPTOMATIC MS CAN EVER BE TRIGGERED BY TRAUMA.LORD PRESIDENT EXPLAINS AT P. 561, IT IS INCORRECT TO THINK OF THE BBB AS A WALL OR SOME OTHER SIMILAR KIND OF BARRIER. IT OPERATES IN A SELECTIVE FASHION BY ADMITTING SOME AND EXCLUDING OTHER SUBSTANCES. WHEN IT IS OPERATING NORMALLY IT ALLOWS BENEFICIAL NUTRIENTS TO PASS INTO THE BRAIN BUT IT EXCLUDES HARMFUL SUBSTANCES. AMONG THE SUBSTANCES WHICH PASS IN AND OUT OF THE BRAIN IN A HEALTHY SUBJECT IS A MODEST, OR LOW-LEVEL, SUPPLY OF LYMPHOCYTES. WHEN THE BODY IS RESPONDING TO AN ATTACK SUCH AS AN INFECTION THE BBB ALTERS SO AS TO ALLOW AN INCREASED SUPPLY OF LYMPHOCYTES TO PASS INTO AND OUT OF THE BRAIN TO FIGHT THE INFECTION. A KEY QUESTION IN THE CASE IS WHETHER, AND IF SO IN WHAT CIRCUMSTANCES, TRAUMA MAY ALSO ALTER OR OPEN UP THE BBB SO AS TO ALLOW ACTIVATED AND DERANGED T-LYMPHOCYTES TO ENTER THE BRAIN.LORD PRESIDENT SAID AT P. 564B THAT THE QUESTION WHETHER THE APPELLANT'S INJURY CAUSED THE ONSET OF HIS SYMPTOMATIC MS COULD BE BROKEN DOWN INTO TWO QUESTIONS. THE PARTIES TO THIS APPEAL ADOPTED THAT APPROACH WHEN THEY WERE PRESENTING THEIR ARGUMENTS. THE FIRST, OR "GENERAL", QUESTION IS WHETHER TRAUMA CAN EVER CAUSE, OR "TRIGGER", THE ONSET OF SYMPTOMATIC MS IN A SUSCEPTIBLE INDIVIDUAL. THE SECOND, OR "PARTICULAR", QUESTION IS WHETHER, IF TRAUMA CAN TRIGGER SYMPTOMATIC MS, IT DID SO IN THE APPELLANT'S CASE. THE WORD "TRIGGER" IS USED TO DESCRIBE THE MECHANISM THAT TURNS ASYMPTOMATIC MS INTO SYMPTOMATIC MS.LORD PRESIDENT SAID AT P. 565C THAT HE WAS PREPARED TO PROCEED ON THE BASIS THAT SHORTLY AFTER THE ACCIDENT THE APPELLANT HAD A PLAQUE OR PLAQUES OF DEMYELINATION ON HIS SPINAL CORD. HE ALSO SAID THAT HE WAS SATISFIED THAT THE SPINAL CORD COULD HAVE BEEN DAMAGED BY A WHIPLASH INJURY. THE RESPONDENT HAS NOT CHALLENGED EITHER OF THESE FINDINGS, AND I ACCEPT THEM AS JUSTIFIED BY THE EVIDENCE.LORD PRESIDENTLORD CAPLANLORD PROSSERLORDSHIPS ARE CONSIDERING WHETHER THE DECISION AS A WHOLE STANDS UP TO EXAMINATION OR SHOULD BE SET ASIDE.LORD PRESIDENT NOTED THAT THERE WAS AN OBVIOUS CONFLICT BETWEEN THE APPELLANT'S WITNESSES, WHO REFERRED TO A NUMBER OF CASES IN THEIR EXPERIENCE WHERE PATIENTS PREVIOUSLY IN GOOD HEALTH HAD DEVELOPED SYMPTOMS OF MS AFTER TRAUMA, AND THE RESPONDENT'S WITNESSES, WHO SAID THAT THEY HAD NOT HAD THAT EXPERIENCE. HE SAID THAT THE FACT THAT SOMEONE LIKE PROFESSOR BEHAN HAD BEEN ABLE TO ASSEMBLE 16 SUCH CASES WAS SOMETHING WHICH ANYONE TRYING TO UNDERSTAND THE POSSIBLE CAUSE OF THE DISEASE MUST TAKE INTO ACCOUNT, AS WAS INDICATED BY THE FACT THAT DR. POSER HAD BEEN LED BY SIMILAR REPORTS AND EXPERIENCES TO PUT FORWARD THE HYPOTHESIS THAT THEY POINTED TO A CAUSAL RELATIONSHIP BETWEEN CERTAIN TRAUMAS AND THE DEVELOPMENT OF MS PLAQUES AND TO SHAPE A THEORY AS TO WHY THERE MIGHT BE SUCH A CAUSAL RELATIONSHIP. BUT IN HIS VIEW SUCH A HYPOTHESIS HAD TO BE TESTED. HE PROCEEDED TO EXAMINE FIRST THE EPIDEMIOLOGICAL STUDIES, ONE OF THE PURPOSES OF WHICH WAS TO TEST THAT HYPOTHESIS, AND THEN THE VALIDITY OF ANY THEORY PUT FORWARD TO EXPLAIN ANY ASSUMED RELATIONSHIP BETWEEN TRAUMA AND THE DEVELOPMENT OF MS. HIS CONCLUSION ON THE EPIDEMIOLOGICAL STUDIES WAS THAT THEY DID NOT SUPPORT THE VIEW THAT THERE WAS A CAUSAL RELATIONSHIP BETWEEN TRAUMA IN GENERAL AND THE ONSET OF SYMPTOMATIC MS, AND THAT THIS WAS IMPORTANT BECAUSE IT FOCUSED ATTENTION ON THE QUESTION WHETHER THERE WAS SUCH A RELATIONSHIP BETWEEN TRAUMA TO THE SPINAL CORD AND THE ONSET OF SUCH SYMPTOMS. HAVING EXAMINED THE THEORIES WHICH WERE ADVANCED BASED ON THE ANIMAL EXPERIMENTS, ON GONSETTE'S PAPER (1966) AND ON OPPENHEIMER (1978) HE SAID AT P. 601G-H THAT HE DID NOT FIND IT PROVED, ON A BALANCE OF PROBABILITIES, THAT TRAUMA IN GENERAL OR WHIPLASH INJURY IN PARTICULAR COULD EVER TRIGGER THE ONSET OF SYMPTOMS OF MS. HE THEN SAID THAT, IN VIEW OF THIS CONCLUSION, HE DID NOT NEED TO GO ON TO ANSWER THE SECOND QUESTION. BUT HE OBSERVED THAT HE HAD DIFFICULTY IN SEEING HOW, EVEN SUPPOSING "THAT IT WERE POSSIBLE" FOR TRAUMA TO TRIGGER THE ONSET OF MS, THE EVIDENCE ESTABLISHED THAT TRAUMA "WAS" A TRIGGER IN THIS CASE RATHER THAN COINCIDENTAL TO ITS ONSET.LORD PROSSER SAID AT P. 612 THAT THE ACCOUNT OF WHAT HAPPENED TO THE APPELLANT IN THE ACCIDENT AND OF HIS NECK SYMPTOMS SHORTLY THEREAFTER SEEMED TO HIM TO SHOW AN ACTUAL TRAUMA WHICH WAS AT LEAST "QUITE LIKELY" TO SHOW AN APPROPRIATE INJURY WITH DAMAGE TO THE BLOOD BRAIN BARRIER, AND THAT HE WOULD BE CONTENT TO INFER THAT THERE WAS INDEED SUCH AN INJURY IF THE GENERAL QUESTION COULD BE ANSWERED IN THE APPELLANT'S FAVOUR (MY EMPHASIS). THIS FORCED HIM BACK TO THE GENERAL QUESTION, AS TO WHICH HE SAID THAT IF ALL ONE COULD SAY IN ANSWER TO THAT QUESTION WAS THAT THESE CASES CANNOT ALL BE MERE COINCIDENCE ONE WOULD LACK ANY POSITIVE POINTER, IN ANY PARTICULAR CASE, AS TO WHETHER THAT CASE WAS ONE WHERE THE TRAUMATIC BREACH WAS USED BY THE LYMPHOCYTES TO PENETRATE THE BARRIER. REVIEWING THE EVIDENCE ON THE GENERAL QUESTION AND HAVING NOTED THE DISCREPANCY BETWEEN THE WITNESSES AS TO THEIR CLINICAL EXPERIENCE, HE SAID THAT HE ACCEPTED THAT THE EXPERIENCE OF PROFESSOR BEHAN AND DR. POSER WAS AS THEY DESCRIBED IT AND THAT OPPENHEIMER'S THEORY SUFFICED TO GIVE AN UNDERSTANDABLE MECHANICAL EXPLANATION FOR THE CLINICAL EXPERIENCE. BUT HE FOUND NO BASIS TO JUSTIFY THE CONCLUSION THAT TRAUMATIC BREACH RATHER THAN CHEMICAL BREACH WAS PROBABLY THE EXPLANATION FOR THE SYMPTOMS IN ANY PARTICULAR PERCENTAGE OF CASES OR MORE PROBABLY THAN NOT. THAT BEING SO, HE SAID AT P. 618H THAT HE DID NOT FEEL ABLE TO HOLD THAT THE APPELLANT "PROBABLY" SUSTAINED AN APPROPRIATE INJURY OR, EVEN ASSUMING SUCH AN INJURY, THAT IN THIS CASE THE TRAUMATIC BREACH RATHER THAN CHEMICAL BREACH LED TO THE SYMPTOMATIC MS. AT P. 620 HE SAID THAT THE EVIDENCE HAD IN HIS VIEW ESTABLISHED THAT TRAUMA "CAN" TRIGGER MS, BUT THAT THAT GENERAL CONCLUSION WAS NOT ENOUGH FOR THE APPELLANT. HE COULD FIND NO BASIS FOR TREATING COINCIDENCE AS RARER, OR AS LESS LIKELY, THAN TRAUMATIC CAUSE IN THIS CASE.LORD CAPLAN INDICATED AT P. 628 THAT HE WAS UNABLE TO ACCEPT THE EVIDENCE OF THE APPELLANT'S WITNESSES BASED ON THEIR CLINICAL EXPERIENCE UNLESS IT WAS TESTED BY OTHER EVIDENCE. HE DID NOT FIND IT POSSIBLE TO FIND FIRM SUPPORT FOR THEIR EVIDENCE FROM THE EXPERIMENTS WITH ANIMALS OR IN THE PAPERS BY GONSETTE OR OPPENHEIMER. HE OBSERVED THAT THE PRECISE MECHANISM FOR THE ACTIVATION OF DORMANT MS REMAINED UNCLEAR. IN HIS VIEW THE EPIDEMIOLOGICAL STUDIES HAD FAILED TO THROW UP ANY POSITIVE CONNECTION BETWEEN THE ONSET OF MS AND TRAUMA. AS FOR THE NATURE OF THE INJURY WHICH THE APPELLANT SUSTAINED IN THE ACCIDENT, HE SAID AT P. 634F THAT HE FOUND THE QUESTION WHETHER THE CERVICAL CORD WAS DAMAGED HARD TO ANSWER IN THE ABSTRACT AS DEDUCTIONS ABOUT THE NATURE OF THAT INJURY WERE TO A DEGREE DEPENDENT ON THE FORCE OF ANY EVIDENCE WHICH COULD ESTABLISH A RECOGNISED LINK BETWEEN MS AND NECK TRAUMA. IF IT WERE CLEARLY SHOWN THAT NECK TRAUMA WAS A RECOGNISED FACILITATOR OF MS HE WOULD BE INCLINED TO HOLD THAT IN THE APPELLANT'S CASE THE COMBINATION OF CIRCUMSTANCES WAS NOT A COINCIDENCE, AND THAT THE PROBABILITY WAS THAT HIS NECK INJURY CAUSED MS. BUT THAT ALL DEPENDED ON IT BEING "PROBABLE" THAT MS COULD BE TRIGGERED BY NECK TRAUMA, WHICH HE WAS UNABLE TO FIND PROVED.LORD PROSSER AND LORD CAPLAN WERE IN BROAD AGREEMENT IN THEIR APPROACH TO THE SECOND QUESTION. ADOPTING LORD PROSSER'S WORDS AT P. 612, THEY WOULD BOTH HAVE BEEN CONTENT TO INFER THAT THE APPELLANT SUSTAINED AN APPROPRIATE NECK INJURY IN THE ACCIDENT IF THEY HAD FELT ABLE TO HOLD THAT SYMPTOMATIC MS COULD "PROBABLY" BE TRIGGERED BY AN INJURY OF THAT KIND. THIS, AS LORD PROSSER SAID, FORCED THEM BOTH BACK TO THE FIRST OR GENERAL QUESTION, WHICH WAS THE ONLY QUESTION THAT THE LORD PRESIDENT FOUND IT NECESSARY TO ANSWER. AS TO THEIR CONCLUSIONS ON THAT QUESTION, THERE WAS A CLEAR DIFFERENCE OF VIEW BETWEEN THE LORD PRESIDENT AND LORD PROSSER. THE LORD PRESIDENT WAS UNABLE TO FIND IT PROVED ON A BALANCE OF PROBABILITIES THAT WHIPLASH INJURY COULD EVER TRIGGER THE ONSET OF SYMPTOMS OF MS, WHEREAS LORD PROSSER WAS SATISFIED THAT TRAUMA "CAN" TRIGGER SYMPTOMATIC MS. BUT THE SIGNIFICANCE OF THIS DIFFERENCE IS MUCH REDUCED ONCE ONE APPRECIATES THAT THE CRITICAL QUESTION FOR LORD PROSSER WAS WHETHER IT HAD BEEN PROVED THAT TRAUMATIC BREACH WAS "MORE PROBABLY THAN NOT" AN EXPLANATION FOR THESE SYMPTOMS. ONLY IF THE EVIDENCE HAD PERSUADED HIM THAT THIS WAS SO WOULD HE HAVE BEEN ABLE TO HOLD THAT IN THE APPELLANT'S CASE THE RELATIONSHIP WAS MORE THAN A COINCIDENCE. AGREEING ON THIS POINT WITH LORD CAPLAN, HIS CONCLUSION WAS THAT IT HAD NOT BEEN PROVED THAT TRAUMA WAS A MORE PROBABLE EXPLANATION.LORD PRESIDENT AND LORD PROSSER IS FURTHER REDUCED BY AN EXAMINATION OF THE VIEWS WHICH THEY EXPRESSED ABOUT THE STUDY WHICH WAS CARRIED OUT BY OPPENHEIMER. IN WHAT THE WITNESSES ON BOTH SIDES ACKNOWLEDGED TO BE A PAPER OF HIGH QUALITY, OPPENHEIMER SET OUT HIS CONCLUSIONS AFTER EXAMINING THE SPINAL CORDS IN 18 CASES OF MS. HE FOUND THAT LESIONS IN THE CERVICAL CORD WERE MORE COMMON THAN AT LOWER LEVELS. IN VIEW OF THEIR SHAPE AND THEIR FREQUENCY HE EXPRESSED THE VIEW THAT MECHANICAL STRESSES PLAY A PART IN DETERMINING THE SITE OF THESE LESIONS, AND THAT SUCH STRESSES ARE COMMONLY TRANSMITTED TO THE CORD DURING FLEXION OF THE SPINE THROUGH THE DENTICULATE LIGAMENTS. THESE LIGAMENTS RUN DOWN EACH OF THE TWO LATERAL ASPECTS OF THE SPINAL CORD AND HOLD THE CORD IN POSITION WITHIN THE SPINE. HIS CONCLUSION WAS THAT IN PATIENTS WITH MS NECK FLEXION WAS DANGEROUS AND THAT PATIENTS WITH THE DISEASE SHOULD BE PROTECTED AGAINST THE EFFECTS OF FULL FLEXION OF THE HEAD AND NECK.LORD PROSSER SAID AT P. 618C THAT HE WAS PERSUADED THAT OPPENHEIMER'S THEORY SUFFICED TO GIVE AN UNDERSTANDABLE MECHANICAL EXPLANATION FOR THE APPELLANT'S WITNESSES' CLINICAL EXPERIENCE. BUT, AS THE LORD PRESIDENT POINTED OUT IN HIS DETAILED ANALYSIS OF THIS PAPER AT PP. 594-599 AND AS LORD CAPLAN ALSO OBSERVED AT P. 630, THAT THEORY WAS SUBJECT TO IMPORTANT LIMITATIONS. AMONG THESE WERE THE FACT THAT HE WAS CONSIDERING THE EFFECTS OF CHRONIC STRESS, NOT SUDDEN TRAUMA SUCH AS A WHIPLASH INJURY, AND THE ABSENCE OF ANY COMPELLING EXPLANATION AS TO WHY LESIONS SIMILAR TO THOSE WHICH HE OBSERVED IN THE SPINAL CORD AND ATTRIBUTED TO MOVEMENT OCCUR IN OTHER AREAS WHICH ARE NOT SUBJECTED TO MOVEMENT OF THAT KIND. I THINK, WITH RESPECT, THAT MUCH OF THE FORCE OF WHAT LORD PROSSER TOOK FROM THIS PAPER IS REMOVED BY THE FACT THAT IN HIS TREATMENT OF IT HE DID NOT SUBJECT THE PAPER TO THE SAME DETAILED ANALYSIS AS THE LORD PRESIDENT.LORDSHIPS ARE TO MAKE OF THE OPINION OF THE LORD PRESIDENT. THE DIFFERENCES BETWEEN HIS REASONS AND THOSE OF LORD PROSSER ON THE FIRST QUESTION ARE SO MARGINAL IN THE WHOLE CONTEXT THAT THE FACT THAT THESE DIFFERENCES EXIST DOES NOT OF ITSELF NOT SERVE IN ANY WAY TO UNDERMINE THE LORD PRESIDENT'S OPINION ON THIS QUESTION, AND ON ALL ESSENTIAL MATTERS LORD CAPLAN AGREED WITH THE LORD PRESIDENT. SO THE APPELLANT MUST SHOW THAT THE LORD PRESIDENT MISDIRECTED HIMSELF BY APPROACHING THE EVIDENCE IN THE WRONG WAY OR BY FAILING TO UNDERSTAND THE NATURE AND SIGNIFICANCE OF THAT EVIDENCE. ONLY IF THAT HURDLE CAN BE OVERCOME WOULD IT BE OPEN TO YOUR LORDSHIPS TO LOOK AT THE WHOLE MATTER AFRESH AND RE-EXAMINE THE QUESTION WHERE THE BALANCE OF PROBABILITIES LIES ON THE DIFFICULT ISSUES RAISED BY THE FIRST QUESTION.LORD PRESIDENT'S OPINIONLORD PRESIDENT BROUGHT TO BEAR ON THE EVIDENCE IS OF SUCH HIGH QUALITY THAT THE TASK WHICH THE APPELLANT HAS SET FOR HIMSELF IS A FORMIDABLE ONE. NEVERTHELESS IT IS RIGHT TO BEAR IN MIND THAT THERE IS AN IMPORTANT DIFFERENCE BETWEEN THE EXACTING STANDARDS OF THOUGHT AND ANALYSIS WHICH THE ACADEMIC WILL EXPECT OF MEDICAL SCIENTISTS AND THE TASK OF A JUDGE WHEN HE IS CONSIDERING WHETHER THE ESSENTIAL ELEMENTS IN A PURSUER'S CASE HAVE BEEN ESTABLISHED ON A BALANCE OF PROBABILITIES.LORD PRESIDENT COOPER SAID IN DAVIE V. MAGISTRATES OF EDINBURGH, 1953 S.C. 34, 40:LORD PROSSER, WHO INTRODUCED HIS OPINION AT PP. 602-605 WITH SOME GENERAL OBSERVATIONS ON THE QUESTIONS OF PROBABILITY AND PROOF. AS HE PUT IT AT P. 603G-I, HE THOUGHT IT RIGHT TO LABOUR THESE ISSUES AS HE HAD FOUND IT IMPORTANT, AND SOMETIMES DIFFICULT, TO KEEP BRINGING THEM TO MIND WHEN LOOKING AT THE EVIDENCE OF PARTICULAR WITNESSES. AT THE END OF THIS PASSAGE, AT PP. 604I-605A, HE OBSERVED THAT, WHILE A CONCLUSION MAY SEEM TO BE INSUFFICIENT UNTIL ONE CAN FIND AN IDENTIFIABLE POSSIBLE MECHANISM AS A BASIS FOR FINDING THAT A CAUSAL LINK IS PROVED OR ESTABLISHED IN ORDINARY OR SCIENTIFIC TERMS, THAT FEELING OF INSUFFICIENCY IS MUCH LESS APPROPRIATE IF ONE STOPS SHORT OF SUCH CLAIMS AND CONTENTS ONESELF WITH SAYING THAT THE CAUSAL RELATIONSHIP IS MARGINALLY PROBABLE AS CIVIL LITIGATION REQUIRES. AT FIRST SIGHT THERE IS PERHAPS AN INDICATION HERE THAT THE EXPLANATION FOR THE DIFFERENCE OF VIEW BETWEEN THE LORD PRESIDENT AND LORD PROSSER ON THE FIRST QUESTION - ALTHOUGH LORD PROSSER STOPPED SHORT OF ANSWERING THAT QUESTION IN A WAY WHICH WOULD HAVE LED HIM TO ANSWER THE SECOND QUESTION IN THE AFFIRMATIVE - MAY HAVE BEEN DUE TO THE BRINGING OF DIFFERENT STANDARDS OF PROOF TO BEAR ON THE EVIDENCE.LORD PRESIDENT BY CONTENDING THAT HE HAD MISDIRECTED HIMSELF BY APPLYING A HIGHER STANDARD OF PROOF, THAT OF SCIENTIFIC PROOF, TO EVIDENCE WHICH REQUIRED TO BE ADDRESSED IN TERMS OF A BALANCE OF PROBABILITY. IF THERE WERE FORCE IN THIS CRITICISM IT WOULD GO A LONG WAY TO OPENING UP THE WHOLE ISSUE. THIS WOULD BE A MISDIRECTION IN LAW WHICH MUST BE TAKEN TO HAVE AFFECTED THE WHOLE OF THE LORD PRESIDENT'S ANALYSIS. IT IS A DIFFICULT ISSUE WHICH I HAVE THOUGHT IT RIGHT TO EXAMINE VERY CAREFULLY.LORD PRESIDENT SAID THAT HE HAD HAD THE ADVANTAGE OF READING A DRAFT OF LORD PROSSER'S OPINION AFTER HE HAD COMPLETED HIS INITIAL DRAFT, AND THAT LORD PROSSER HAD ARTICULATED SOME OF THE PROBLEMS WHICH HE HIMSELF HAD EXPERIENCED. THAT HE WAS FULLY ALIVE TO THE PROBLEM IS PLAIN FROM THESE OBSERVATIONS AT P. 600:LORD PRESIDENT MISUNDERSTOOD THE EVIDENCE AND THAT THE LORD PRESIDENT OUGHT NOT TO HAVE EXPRESSED THE VIEW WHICH HE DOES AT THE END OF HIS OPINION ON THE SECOND QUESTION WITHOUT GIVING REASONS FOR THAT VIEW.LORD PRESIDENT DID NOT GIVE PROPER WEIGHT TO THE CLINICAL AND HISTORICAL EVIDENCE IN HIS SUMMING UP ON THIS CHAPTER AT P. 569E-G. THIS LED HIM TO REJECT THAT EVIDENCE WHEN TESTING IT AGAINST THE EPIDEMIOLOGICAL EVIDENCE. HE OUGHT NOT TO HAVE DONE THIS, AS THE CONCLUSIONS WHICH HE DREW FROM THE EPIDEMIOLOGICAL EVIDENCE WERE UNSOUND AND UNSATISFACTORY. AT P. 585D THE LORD PRESIDENT SAID THAT THE EPIDEMIOLOGICAL STUDIES MIGHT NOT BE PERFECT BUT THAT THEY WERE THE BEST SOURCE OF SCIENTIFIC INFORMATION ON THE POINT WHICH WAS AVAILABLE. BUT THE FACT THAT THEY WERE THE BEST SOURCE OF INFORMATION THAT WAS AVAILABLE WAS NOT A SOUND REASON FOR ATTACHING WEIGHT TO THEM IN COMPARISON WITH THE CLINICAL AND HISTORICAL EVIDENCE. HE WAS RIGHT TO DISCOUNT THE STUDY BY MCALPINE AND COMPSTON (1952) FOR THE REASON GIVEN AT P. 585F THAT THE FIGURES IN THAT STUDY WERE BUILT UP OF MANY DIFFERENT TYPES OF TRAUMA INCLUDING PERIPHERAL TRAUMA. BUT HE SHOULD HAVE APPLIED THE SAME REASONING TO THE ARIZONA AND MAYO CLINIC STUDIES, AS NEITHER OF THEM HAD BEEN DESIGNED TO INVESTIGATE THE SPECIFIC TYPES OF TRAUMA WHICH WERE SAID TO PRODUCE MS PLAQUES. ALL THESE STUDIES WERE SUBJECT TO THE SAME CRITICISM THAT THEY EXAMINED A WIDE RANGE OF DIFFERENT TYPES OF TRAUMA AND WERE NOT DESIGNED TO ADDRESS THE PARTICULAR POINT PUT IN ISSUE BY THE CLINICAL AND HISTORICAL EVIDENCE. THIS HAD BEEN RECOGNISED BY LORD PROSSER, WHO SAID AT P. 619B-C THAT HE COULD NOT FIND ANYTHING IN THESE STUDIES WHICH THREW ANY USEFUL LIGHT ON THE NARROWER QUESTION AS TO THE SPECIFIC CATEGORY OF PHYSICAL INJURIES WHICH MIGHT DAMAGE THE BLOOD BRAIN BARRIER. THE LORD PRESIDENT ACCEPTED AT P. 579H-I THAT WEAKNESSES IN PROFESSOR SIBLEY'S GRASP OF THE DETAIL OF THE ARTICLES HAD BEEN REVEALED IN CROSS-EXAMINATION. BUT HE THEN SAID THAT THE STATISTICAL CALCULATIONS AND CONCLUSIONS SHOULD BE ACCEPTED UNLESS THEY WERE ACTUALLY SHOWN TO BE WRONG. THIS WAS AN ERROR, AS THE ARTICLES COULD NOT SPEAK FOR THEMSELVES AND THE ONUS WAS ON THE RESPONDENT TO LEAD THE NECESSARY EVIDENCE. THE NEED FOR EVIDENCE OF THAT KIND WAS DEMONSTRATED BY THE LORD PRESIDENT'S OBSERVATION AT PP. 580I-581A THAT THE MAYO CLINIC STUDY WAS DIFFICULT TO FOLLOW AS ITS FORMAT WAS NOT WELL CONSTRUCTED.LORD PRESIDENT'S TREATMENT OF THE EPIDEMIOLOGICAL EVIDENCE IS THAT THE OBSERVATIONS TO WHICH THEY WERE DIRECTED MUST BE SEEN AND UNDERSTOOD IN THE CONTEXT OF THE LORD PRESIDENT'S OPINION AS A WHOLE. IT HAS NOT BEEN DEMONSTRATED THAT HIS NARRATIVE OF THE EVIDENCE WAS INACCURATE, AND I AM NOT PERSUADED THAT HE MISUNDERSTOOD THE EVIDENCE. THE QUESTION IS WHETHER HE WAS ENTITLED TO USE THE EVIDENCE AS HE DID, BEARING IN MIND ITS LIMITATIONS AND THE ABSENCE OF EVIDENCE EITHER TO SUPPORT OR TO UNDERMINE THE STATISTICAL EXERCISES. AS REGARDS THE STATISTICS, THE LORD PRESIDENT WAS RIGHT TO POINT OUT THAT THE QUESTION WHETHER THE WORKED FIGURES WERE INCORRECT OR OVERLOOKED IN THE ANALYSIS WAS NOT EXPLORED IN THE EVIDENCE. THE PARTIES DID NOT JOIN ISSUE ON THIS POINT. AS CAN BE SEEN FROM PROFESSOR SIBLEY'S CROSS-EXAMINATION AT PP. 1440C -1445A FOR EXAMPLE, IT WAS THE USE TO BE MADE OF THE PUBLISHED MATERIAL WHICH WAS IN DISPUTE. IN THESE CIRCUMSTANCES THE LORD PRESIDENT WAS ENTITLED TO PROCEED UPON THE BASIS THAT THE CALCULATIONS AND CONCLUSIONS SHOULD BE ACCEPTED FOR WHAT THEY WERE WORTH UNLESS THEY WERE SHOWN TO BE UNSATISFACTORY BY CONTRARY EVIDENCE, AND TO CONCENTRATE ON THE USE WHICH OUGHT TO BE MADE OF THEM. THIS IS IN ACCORDANCE WITH THE USUAL PRACTICE IN THE TREATMENT OF PUBLISHED MATERIAL WHICH IS RELIED UPON BY EXPERT WITNESSES. AS REGARDS THE USE TO BE MADE OF IT, THE OPINION SHOWS THAT THE LORD PRESIDENT WAS FULLY AWARE OF THE VARIOUS CRITICISMS WHICH HAD BEEN ADVANCED BY THE APPELLANT'S WITNESSES FOR DISREGARDING OR AT LEAST FOR ATTACHING NO SIGNIFICANT WEIGHT TO THIS MATERIAL. THERE WAS A DIFFERENCE OF VIEW BETWEEN HIM AND LORD PROSSER AS TO THE CONCLUSION WHICH WAS TO BE DRAWN FROM IT WHEN IT WAS COMPARED WITH THE CLINICAL AND HISTORICAL EVIDENCE. BUT THIS OF ITSELF DOES NOT MEAN THAT THE LORD PRESIDENT'S CONCLUSION AT PP. 585C-586D MUST BE REJECTED AS UNSOUND.LORD PRESIDENT EXPRESSED IN THIS PASSAGE ARE FULLY SUPPORTED BY HIS CAREFUL ANALYSIS OF THE EVIDENCE AND THAT HE WAS ENTITLED TO REACH THE CONCLUSIONS WHICH HE DID BASED ON THAT ANALYSIS. HE WAS RIGHT TO POINT OUT AT P. 586D THAT THE EPIDEMIOLOGICAL STUDIES AT LEAST SHOWED THAT ONE SHOULD LOOK CAREFULLY AT THE EVIDENCE WHICH WAS SAID TO SUPPORT THE EXISTENCE OF A CAUSAL RELATIONSHIP BETWEEN TRAUMA TO THE SPINAL CORD AND THE ONSET OF SYMPTOMATIC MS.LORD PRESIDENT'S TREATMENT OF THE EVIDENCE ABOUT EXPERIMENTS ON ANIMALS, OF GONSETTE AND OF OPPENHEIMER. HE SAID THAT HIS REASONS FOR FINDING THAT THE EVIDENCE OF THE ANIMAL EXPERIMENTS DID NOT PROVIDE MATERIAL SUPPORT FOR THE VIEW THAT TRAUMA CAN CAUSE THE ONSET OF SYMPTOMATIC MS WERE UNSOUND, AS THIS CONCLUSION OVERLOOKED THE PURPOSE OF THESE EXPERIMENTS. HE CRITICISED THE LORD PRESIDENT'S TREATMENT OF THE GONSETTE PAPER ON THE GROUND THAT THE CONCLUSIONS WHICH HE DREW FROM IT AT PP. 594B-C AND 600F-G WERE IN CONFLICT WITH EVIDENCE GIVEN BY PROFESSOR BEHAN AND DR. POSER WHICH HE HAD ACCEPTED PREVIOUSLY. THE OBSERVATION AT PP. 598I-599A THAT OPPENHEIMER'S HYPOTHESIS, WHICH INVOLVED THE EFFECTS OF MOVEMENT, DID NOT PROVIDE A COMPELLING EXPLANATION OF WHY LESIONS LEADING TO DEMYELINATION OCCURRED IN AREAS OF THE BRAIN WHICH ARE NOT SUBJECTED TO MOVEMENT OF THAT KIND IGNORED THE FACT THAT THERE WAS CLEAR EVIDENCE THAT THE PREPONDERANCE OF PLAQUES WERE EXPLICABLE BY MOVEMENT AND THE EFFECTS OF MOVEMENT. DUE TO THIS AND OTHER ERRORS IN HIS REASONING THE LORD PRESIDENT DID NOT GIVE THE WEIGHT TO OPPENHEIMER'S PAPER WHICH HE SHOULD HAVE DONE.LORD PRESIDENT'S TREATMENT OF THESE CHAPTERS OF THE EVIDENCE WAS ERRONEOUS OR THAN HE WAS NOT ENTITLED TO REACH THE CONCLUSIONS WHICH HE DREW FROM THEM. THERE WAS AN ACUTE CONFLICT BETWEEN THE EXPERTS AS TO THE BEARING WHICH THE EXPERIMENTS ON ANIMALS HAD ON THE QUESTION WHETHER TRAUMA CAN CAUSE THE ONSET OF MS IN HUMANS. ANIMALS DO NOT DEVELOP MS AND THE CONDITION FROM WHICH THEY SUFFER KNOWN AS EXPERIMENTAL ALLERGIC ENCEPHALITIS IS NOT THE SAME AS MS. THE WEIGHT TO BE ATTACHED TO THESE EXPERIMENTS IS A QUESTION ON WHICH VIEWS MAY DIFFER AMONG EXPERTS, BUT IN A CIVIL PROOF THIS IS A MATTER FOR DECISION BY THE JUDGE ON A BALANCE OF PROBABILITIES. SO ALSO IS THE QUESTION AS TO THE WEIGHT TO BE ATTACHED TO GONSETTE'S STUDY OF THE DEVELOPMENT OF FRESH PLAQUES IN THE VICINITY OF AREAS OF THE BRAIN AFFECTED BY THE PROCEDURE KNOWN AS THALAMOTOMY - THE INSERTION OF A TROCAR, OR NEEDLE, THROUGH THE UPPER LAYERS OF THE BRAIN THROUGH WHICH AN ELECTRIC CURRENT IS THEN PASSED TO DESTROY A PART OF THE BRAIN TISSUE. AT PP. 592-594 THE LORD PRESIDENT SETS OUT THE EVIDENCE FROM BOTH SIDES ABOUT THIS STUDY AND NARRATES WHAT THE EXPERTS ON EACH SIDE HAD TO SAY ABOUT IT. HE ACKNOWLEDGES THE IMPORTANCE OF THE QUESTIONS RAISED BY THE EXPERIMENTS, AND THEN TAKES ACCOUNT OF THE POINTS MADE IN REPLY BY THE RESPONDENT'S WITNESSES. THE CONCLUSION WHICH HE REACHES AT P. 594G THAT IT DID NOT PROVIDE A BASIS FOR THE CONCLUSION THAT TRAUMA OF THE KIND THAT THE APPELLANT SUFFERED CAN CAUSE MS SEEMS TO ME TO BE FULLY JUSTIFIED BY THE CAREFUL REASONING WHICH PRECEDED IT.LORD PRESIDENT TAKES FULL ACCOUNT OF THE POINTS WHICH HAVE TO BE BORNE IN MIND IN DOING JUSTICE TO THIS STUDY, ACKNOWLEDGES AT P. 598G THAT THE PAPER DOES INDEED SUGGEST THAT THE LATERAL COLUMNS OF THE SPINAL CORD ARE A SITE OF PREFERENCE FOR THE DEVELOPMENT OF MS PLAQUES AND ACCEPTS THAT HIS OBSERVATIONS POINT TO A PHENOMENON THAT REQUIRES TO BE INVESTIGATED. AT P. 600G HE SAYS THAT, LIKE EVERYONE ELSE INVOLVED IN THE CASE, HE WAS IMPRESSED BY THIS PAPER AND THAT HE ACCEPTED THAT OPPENHEIMER'S HYPOTHESIS THAT BREACHES OF THE BBB MAY BE CAUSED BY FLEXION COULD SUPPORT THE THEORY THAT OTHER TYPES OF TRAUMA, SUCH AS A WHIPLASH INJURY, COULD ALSO CAUSE A BREACH OF THE BBB LEADING TO DEMYELINATION. BUT IN THE END, AFTER WEIGHING UP ALL THE FACTORS POINTING ONE WAY AND THE OTHER, HE SAYS AT P. 601G THAT HE DOES NOT FIND THIS THEORY PROVED. AS REGARDS THIS PART OF THE CASE ALSO I AM QUITE UNABLE TO FIND ANY DEFECT IN THE LORD PRESIDENT'S REASONING TO JUSTIFY THE VIEW THAT HE WAS NOT ENTITLED TO REACH THIS CONCLUSION IN THE LIGHT OF HIS EXAMINATION OF THE EVIDENCE.LORD PRESIDENT TO THIS CONCLUSION SEEMS TO ME TO BE QUITE STRAIGHTFORWARD, AND IN MY OPINION IT IS UNASSAILABLE. THERE IS A BODY OF CLINICAL EVIDENCE THAT SHOWS THAT THERE ARE MANY CASES OF SYMPTOMATIC MS WHICH CANNOT BE RELATED TO TRAUMA. IN A SMALL NUMBER OF CASES THE ONSET OF SYMPTOMS IS PRECEDED BY TRAUMA. THAT HAPPENED IN THIS CASE, BUT COINCIDENCES CAN OCCUR. SO THE THEORY THAT TRAUMA TRIGGERS THE ONSET OF SYMPTOMS OF MS HAS TO BE TESTED. EXPERIMENTS ON ANIMALS AND THE STUDY BY GONSETTE SHOW THAT VIOLENCE CAN OPEN UP THE BBB IN SUCH A WAY AS TO PERMIT THE BRAIN TO BE ATTACKED BY ACTIVATED AND DERANGED T-LYMPHOCYTES. BUT THERE WAS NO QUESTION OF SUCH VIOLENCE IN THIS CASE. IN ANY EVENT THIS EVIDENCE STILL LEAVES THE MAJORITY OF CASES OF SYMPTOMATIC MS UNEXPLAINED. THE EPIDEMIOLOGICAL STUDIES DO NOT SUPPORT THE APPELLANT'S CASE. IF ANYTHING THEY TEND TO SUPPORT THE ARGUMENTS TO THE CONTRARY. BUT FOR PRESENT PURPOSES THE IMPORTANT POINT IS THAT THEY SHOW THAT THE APPELLANT'S CASE DEPENDS UPON THERE BEING AN ACCEPTABLE THEORY TO EXPLAIN WHAT IT IS THAT OVERCOMES THE BBB AND PERMITS THE DEVELOPMENT OF SYMPTOMATIC MS. A SATISFACTORY EXPLANATION WOULD GO A LONG WAY TO SUPPORTING THE APPELLANT'S CASE. BUT THE EVIDENCE, WHICH REACHES ITS HIGHEST POINT WITH THE STUDY BY OPPENHEIMER, DOES NOT GO FAR ENOUGH TO PROVIDE THAT EXPLANATION. SO THE APPELLANT'S CASE FAILS ON A BALANCE OF PROBABILITIES.LORD PRESIDENT EXPRESSED ON THE SECOND QUESTION, IT SEEMS TO ME THAT HE WAS SIMPLY MAKING THE POINT WHICH I THINK HE WAS ENTITLED TO MAKE IN THE LIGHT OF HIS REVIEW OF THE EVIDENCE ON THE FIRST QUESTION THAT IT WAS NOT ENOUGH FOR THE APPELLANT TO ESTABLISH THAT TRAUMA IN GENERAL COULD TRIGGER THE ONSET OF MS. SUFFICIENT SUPPORT HAD TO BE FOUND IN THE EVIDENCE ON THE FIRST QUESTION AS TO WHETHER THE ONSET OF SYMPTOMATIC MS CAN BE CAUSED BY A WHIPLASH INJURY WHICH DAMAGES THE NERVE PATHWAYS IN THE SPINAL CORD TO ENABLE THE INFERENCE TO BE DRAWN THAT THE WHIPLASH INJURY WHICH HE SUSTAINED IN THE ACCIDENT WAS THAT KIND OF INJURY. THE VIEW WHICH HE FORMED AS TO WHERE THE BALANCE LAY AFTER ASSESSING THE WEIGHT OF THE EVIDENCE ON THE FIRST QUESTION LED INEVITABLY TO THE CONCLUSION THAT THE APPELLANT HAD FAILED TO PROVE THAT THERE WAS A CONNECTION BETWEEN THE INJURY AND THE ONSET OF HIS MS.LORD CLYDELORDS,LORD HOPE OF CRAIGHEAD. FOR THE REASONS HE HAS GIVEN I WOULD ALSO DISMISS THE APPEAL.