England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WANDSWORTH COUNTY COURT
(MR RECORDER O'SULLIVAN)

		Royal Courts of Justice The Strand London Wednesday 24 October 2001

Wednesday 24 October 2001

1. LORD JUSTICE BROOKE: This is a renewed application for permission to appeal against an order of Mr Recorder O'Sullivan made in the Wandsworth County Court on 9 April 2001 when he dismissed the defendants' appeal against an order of District Judge Tilbury dated 18 January 2001. The effect of the order was that in this personal injury case, which is of multi-track scale, the district judge did not allow the defendants to rely on a consultant orthopaedic surgeon, Mr Taor, whom they had recently instructed in the case. The order had the effect that they had to rely on the evidence of a Dr Saywood, who is not of consultant status, whom they had instructed in the matter prior to the coming into force of the Woolf reforms and the pre-action protocol for personal injury cases, and when the claimant had instructed a consultant orthopaedic surgeon on the other side.
2. It is not necessary to say much about the history of the matter. The accident occurred in May 1997. The claimant, who was a lady in her late forties, was working for Vauxhall after sales at Luton. She was involved in collecting a windscreen, but they were awkwardly packed and she had to enter a metal container called a stillage in order to get the windscreen out. A stack of windscreens toppled over towards her. She suffered a twisting injury of her neck and shoulders. The medical reports show how she was in considerable pain in her neck for a period of time. Ultimately, in August 1997, following a course of physiotherapy which did not do the trick, she had X-rays which showed a minor loss of disc space between two adjacent vertebrae in her cervical spine. Further X-rays were taken two months later and in October there was some manipulation of her cervical spine. Medical reports shows that from time to time she has had pain in her neck ever since.
3. As is common in this type of case when it cannot be settled readily, the issue between the doctors on each is that, on the one side, the defendants' advisers are saying that there was pre-existing cervical spondylosis; the claimant had had a history of neck pains going back to 1984 and her continuing troubles were attributable to the pre-existing condition rather than to the trauma on 10 May 1997. The claimant's advisers, on the other hand, are saying that, although there was a mild history of pre-existing trouble, the trauma on 10 May 1997 was the effective cause of all the miseries she has suffered since. Accordingly, there is quite a substantial issue and quite a substantial distance between the parties.
4. In the days before the Woolf reforms came into force, the defendants' insurers sent the papers to a Dr Saywood, who carries on his business as Westminster Medical Ltd. He has a number of professional qualifications, but he is not of consultant status. It appears from the papers that he writes medical reports in personal injury cases on quite a large number of occasions. He produced two reports: one in December 1988 and the next in May 1999, in which he concluded that the cause of the claimant's continuing symptoms was the pre-existing condition rather than the traumatic accident on 10 May.
5. By this stage the pre-action protocol had come into force. In accordance with the protocol the names of three doctors were offered to the defendants' side. Unhappily, they do not seem to have been very familiar with the principles of the protocol in those early days. Accordingly, the claimant's solicitors went ahead and instructed Mr Richard Coombs who, we have been told today, would not have been the defendants' insurers' first choice.
6. Mr Coombs has produced a number of reports. He has studied the X-rays; he has caused an MRI scan to be taken; and he has come to the conclusion that the traumatic accident was the cause of all the claimant's subsequent woes.
7. The defendants' insurers, following the pre-Woolf tradition, sought to instruct their own consultant orthopaedic surgeon, Mr Taor. Indeed, the claimant went along to be examined by Mr Taor on 24 October 2000. Mr Taor's reports did not finally surface until 15 January, which was just before the hearing before the district judge. I believe that there was a delay in getting all the material reports to him.
8. However that may be, the district judge for his part, and the Recorder following him, took the view that, the defendants having instructed Mr Saywood, they were stuck with him. The claimant had instructed Mr Coombs and the matter should go forward to trial without any further expert evidence being called by the defendants.
9. One other material factor which influenced the defendants' insurers was that at a trial of a quite different action in the Central London County Court, where the same solicitors appeared on each side, His Honour Judge Reid QC found for the claimant in a relatively small personal injury case, in which he awarded £7,500 damages. In that case the judge said that he preferred the evidence of a consultant surgeon called by the claimant in contrast to Mr Saywood, who gave evidence for the defendants in that case, and whom he described as a "GP and doctor specialising in medical reports". Judge Reid said:

"Mr Rawlings, by contrast, is a specialist and trained surgeon, this in the particular area of expertise with regard to this case. He is thus to be preferred due to his experience on this type of case."

10. Mr Baraclough recognises that he faces the formidable hurdle created by Parliament in the Access to Justice Act that he will not get permission to appeal pursuant to CPR 52.13 in relation to a second appeal unless this court considers that the appeal would raise an important point of principle or practice, or that there is some other compelling reason for the Court of Appeal to hear it.
11. Hale LJ refused permission on the grounds that she could see no important point of principle or practice; that this was merely a case management decision; that the object of the new procedures was to encourage agreed rather than competitive expertise; and that the claimant acted in accordance with the pre-action protocol on this point and that the defendants did not.
12. I have a nagging worry that the effect of the orders from the court below will be that, on this issue on which quite a lot of money will turn, the claimant will be at the advantage of having a consultant orthopaedic surgeon giving evidence about the effect of the X-rays, the MRI scan and the medical report, whereas the defendants, although they have a consultant orthopaedic surgeon whose report had been made before the matter was considered by the district judge, are not allowed to use him in order to get a level playing field.
13. If this situation occurred today, I would have no hesitation in refusing permission to appeal. In Daniels v Walker [2000] 1 WLR 1382 the former Master of the Rolls allowed an appeal, allowing the defendants to obtain an expert of their choice following the use of the protocol and the appearance of an expert on the plaintiff's side. This is a different situation but, in my judgment, it is arguable that, because it was a transitional case where the defendants, before the pre-action protocol came into force, had sent the papers to Dr Saywood, it should not be judged as if it was a case governed by the Woolf philosophy and the pre-action protocol. I have a nagging worry that justice would not be done if the Recorder's order was to stand.
14. Mr Baraclough, who has argued the matter admirably on behalf of the defendant, suggests that a compelling reason for allowing the appeal to proceed might be that the prospect of success on the appeal was high and that it should be obvious that the circuit judge fell into error. I am not sure that this case would satisfy this test. It is because this was a transitional case, and the fact that it was a transitional case seems to have escaped the notice of the district judge and the Recorder, that I do consider that there is an important point of practice here. But it will only relate to a transitional case of this kind.
15. I would therefore be disposed to grant permission to appeal. It seems to me that it is arguable that justice demands that this case be tried on a level playing field with a consultant orthopaedic surgeon on each side. I hope that when the terms of this judgment have been transcribed and shown to the claimant's solicitors, they may be persuaded to agree to an order enabling Mr Taor's evidence to be given at the trial on the basis that the costs of this appeal are reserved to the trial judge and that the matter can then proceed relatively speedily to trial without having to have an appeal hearing delaying matters and adding to the costs in this court.
16. However, today all I am able to do is to grant permission to appeal. The case is fit for a two-judge court. The court should contain a Lord Justice with a specialist knowledge of personal injury litigation. Ideally it should not contain Hale LJ, since she has refused permission. I would estimate, subject to what Mr Baraclough says, an hour and a half.
17. MR JUSTICE DAVID STEEL: I agree.
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