England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GREAT GRIMSBY COUNTY COURT
(His Honour Judge Heath)

		Royal Courts of Justice Strand London WC2 Wednesday, 25th April 2001

Wednesday, 25th April 2001

1. LORD JUSTICE WALLER: This is an application for permission to appeal from a judgment given by His Honour Judge Heath on 15th August last year. The case was brought by Mr Evison. He claimed that he had suffered an injury to his knee as a result of an accident at work. Liability was in fact not in issue, so the whole issue in the case was how serious was the injury to Mr Evison's knee.
2. The judge found against Mr Evison in the sense that he did not accept that the injury was anywhere near as serious as that which was being claimed by Mr Evison. In the result, the judge awarded general damages of £1,500 and loss of earnings of £1,128, which the judge put in the following terms:

"He is also entitled to loss of wages for those three months at £1,128".

3. In saying "those three months" what the judge was reflecting was the difference between the two expert witnesses who gave evidence before the judge, a Mr Fagg, who was giving evidence to the effect that the injury was not very serious and was one which simply put Mr Evison off work for some three months, and the evidence of Mr Stoffelen, which was that effectively Mr Evison should have had compensation for a period of two years, the injury having accelerated the poor condition of his knee. The judge found that Mr Fagg's evidence was to be accepted and not that of Mr Stoffelen. The judge was critical of the evidence given by Mr Evison and suggested that Mr Evison had given a false picture to Mr Fagg and indeed to Mr Stoffelen.
4. Mr Evison's main complaint, which he has expanded before me, relates to the expert evidence which he was previously intending to call, which was that from a Mr Hunter. What happened was that Mr Hunter saw Mr Evison and produced various reports in relation to the knee injury; but when Mr Hunter produced his last report, Mr Hunter had clearly formed the view that Mr Evison was exaggerating his injuries. Mr Hunter, in particular, set out in his report the fact that he said that he saw Mr Evison, after he had left the consultation rooms, walking for some 100 yards carrying his stick rather than using his stick, he having come into the consulting room using that stick.
5. There was an application prior to the trial by Mr Evison, or on Mr Evison's behalf, seeking to have Mr Hunter's evidence excluded. The District Judge ruled that Mr Evison did not have to call Mr Hunter. On the other hand, the defendants said that they wanted to have Mr Hunter's statement in evidence and it was ruled that they were entitled to have that. There was no property in the witness and that is something that they were entitled to have, but, says Mr Evison, the judge was unfairly swayed by that evidence of Mr Hunter. He relies on the fact that in proceedings that Mr Evison brought against Mr Hunter, Mr Hunter put in a statement in which he had to deal with the sighting of Mr Evison; and in that statement he refers to having seen him carrying his stick and not making any effort to use the stick over a distance of 100 yards. He then says:

"I cannot recall whether the Claimant was lost to sight because he turned right to the car park or because he crossed over the other side of the road junction. Had it been the latter, the distance over which I would have observed him walk would have been in the region of 100 yards. However, in the event he turned right into the nearer car park, I would have watched him over a distance of between 30 and 40 yards. Although it is possible, on the basis of the above, I may be mistaken about my recollection of the distance he walked, even of the basis of the shorter distance, this was sufficient for me to see that he did not use his walking stick over this distance."

6. Of course that material would not have been before the judge.
7. As it seems to me, having read the whole of the judgment of His Honour Judge Heath, albeit he clearly takes into account the fact that Mr Hunter had taken the view that Mr Evison had exaggerated his symptoms, that is not the overwhelming factor by any matter of means so far as the judge's findings in this case are concerned.
8. I would add this. Mr Evison complains about the fact that the statement of a Mr John Payne was not admitted in evidence. Of course the critical issue before His Honour Judge Heath was as to whether there had been a serious injury to his knee. What Mr Evison was saying in his evidence, and had been saying to the experts, was that he had suffered very severe pain with the knee at the moment of the incident. What he was seeking to do before Judge Heath was to put in Mr Payne's statement -- Mr Payne was the man working with him -- in which Mr Payne was suggesting that Mr Evison had suffered pain at the time of the incident. The Judge ruled that that statement should not be allowed to be put in evidence unless Mr Payne was called so that he could be cross-examined about that part of his evidence. Indeed, the judge recalls, in ruling that Mr Payne's statement should not be allowed to go in, that Mr Evison understood fully the fairness of that position. The fact is that Mr Payne was not called and indeed could not be called. Thus the judge's ruling was that that statement should not go in. In my view no possible criticism can be made of that ruling.
9. The other factors relied on by Mr Evison are some of the findings which he said the judge made in relation to Mr Evison's ability to get a job. He suggested the judge was critical of him being a single parent. Mr Evison obtained a residence order so far as his grandchild is concerned. The judge recalls that there was no criticism of that. Indeed that was a thoroughly good thing for Mr Evison to have done. But that was a factor, so far as the judge was concerned, in considering whether and to what extent Mr Evison might or might not have got a job thereafter. It was also part of the judge's reasoning in relation to whether Mr Evison would have got a job as to whether there were persons coming into the market from outside who might have made it more difficult to get work. But the difficulty with those points is that, even if there were anything in them, they would not detract from the basic point, which was that the judge found that Mr Fagg's evidence was to be accepted, that is to say that there was simply a three month loss of earning power for which the judge compensated Mr Evison. Those other points would only have been relevant if the judge had formed the view that there should be some award for loss of earnings outside that three month period.
10. As I sought to explain to Mr Evison, the process at this stage is for him to try to demonstrate that there is a reasonable prospect of success on an appeal before a full court. As I also sought to explain to him, one of his difficulties is that the judge here made findings of fact and it is very difficult in the Court of Appeal to reverse those findings of fact.
11. Mr Evison seeks in an application that is also before me to suggest that he should be allowed to produce further evidence. One is the statement of John Payne, but that I have already dealt with. So there is no prospect of that being admitted in the Court of Appeal. The other is the statement of a taxi driver who was said to have collected Mr Evison when he was leaving the consultations rooms of Mr Hunter, but that statement was also before the judge. So far as the rules for calling evidence in the Court of Appeal are concerned, they are that if the evidence was available at the trial then it would not be admitted in evidence in the Court of Appeal. So there is no possibility of Mr Evison being able to call any further evidence than that which he called at the trial.
12. It would in fact be doing Mr Evison no favours at all to give him permission to appeal. He really has no prospect of success. If he were to take the matter further, he would simply find himself saddled with a further order for costs, which would be of no benefit to him at all.
13. In those circumstances, I refuse permission to appeal.
Order: Application dismissed