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 THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
(His Honour Judge Fawcus)

		The Royal Courts of Justice Strand London WC2 Tuesday 20th August, 2002

1. LORD JUSTICE ALDOUS: I ask Lord Justice Keene to give the first judgment.
2. LORD JUSTICE KEENE: This renewed application for permission to appeal arises out of two decisions made by His Honour Judge Fawcus sitting as a deputy High Court judge in Manchester. The proceedings with which the judge was dealing arose from a claim in negligence brought by William Brian Anderson against the National Health Service Trust responsible for the Blackpool Victoria Hospital. The claimant, whose application this is, had been shot during an attempt to murder him in April 1995. The shooting caused severe injuries to his right arm. He also suffered considerable stress as a result of the shooting and of the process of awaiting the trial of his attacker. It is now established that he was suffering from post-traumatic stress disorder ("PTSD"). But in October or November 1995 he was misdiagnosed at the Blackpool Victoria Hospital as an aggressive psychopath and was discharged from the hospital on 3rd November 1995. As a result there was a lack of appropriate treatment for his PTSD.
3. Breach of duty was admitted by the defendant, but there was an important issue as to the effect which the misdiagnosis and lack of treatment had on the duration of the claimant's psychiatric condition. On this aspect the judge held that any continuing disability from his psychiatric illness beyond 1999 was attributable to the defendant's breach of duty.
4. One of the other issues to be determined concerned the employment prospects of the claimant had there been no breach of duty by the NHS Trust.
5. The claimant was born in July 1967, so that he was aged 28 at the date of the breach of duty. He came, as the judge accepted, from a respected family with a long background in merchant shipping, and he himself had joined the merchant navy in December 1987 as a deckhand. He had been employed at sea until he was made redundant at the end of 1992. At the date of the shooting he was unemployed, and of course remained so during the subsequent treatment.
6. The contention advanced on his behalf in the schedule of past and future loss was that if he had had appropriate treatment after the shooting he would have returned to work at sea, and eventually would have obtained the position of master or captain in the merchant navy. The defendant took issue with that. Apart from relying on the gap in the claimant's seagoing employment which there would in any event have been after his redundancy in 1992, the NHS Trust emphasised the claimant's criminal record. In particular, in 1993 he had been arrested on a drugs charge. He was in due course convicted on 10th June 1994 of possession of a class B drug, amphetamines, with intent to supply and as a result he was sentenced to 12 months' imprisonment. Since he had in fact spent a substantial time in custody on remand awaiting trial, he was released from prison in June 1994. However, he remained without any seagoing employment up until the time when he was shot almost a year later in April 1995.
7. The issue therefore centred around his prospects of returning to a career at sea had there been no breach of duty by the defendant. Almost £780,000 of the claim turned on this issue. Evidence on behalf of both parties was given on this topic, which was one of a number of matters dealt with at trial.
8. On behalf of the claimant evidence on it was given by a Mr Nolan, who had been chief engineer for the company originally employing the claimant in the late 1980s; by a Captain Kirby, a retired merchant navy captain; by the claimant himself; and by an employment expert, Mr Nicoll. There was also a statement from the claimant's father, who had retired from the merchant navy in November 2000 with the rank of captain. That statement was admitted under the Civil Evidence Act 1995 because of Captain Anderson's ill health. There were also some letters produced as part of the claimant's case on this issue.
9. On behalf of the defendant the evidence on this topic came from a Mr Roger Haworth, who had served in the merchant navy since 1954, had qualified as a master mariner in 1964 and who had experience in the recruitment and training of ratings and petty officers for the merchant navy.
10. The trial began on Tuesday 7th May 2002. Both sides' factual evidence was heard during that first week, with the evidence from Mr Nolan and Captain Kirby, and by the following Wednesday, 15th May, the experts on liability had given evidence, Prof Sims and a Dr Mezey.
11. On the afternoon of that day, 15th May, leading counsel for the claimant applied to put in a statement from and to call as a witness Paul Jonathan Willis, who had been operations director at the same shipping company as Mr Nolan. It was acknowledged by counsel that this application was made very late. The judge was told that what Mr Willis would give evidence about were:

"... matters that have all been the subject of evidence and cross-examination and that is Mr Anderson's employment by Suffolk Marine between 1987 and 1989 and also concerning Mr Anderson's regard in which he was held in the industry, his prospect for obtaining employment, notwithstanding the drug conviction which he had. But essentially, my Lord, it is a statement in a similar [vein], available in the statement, the evidence you have seen from Captain Kirby and the other witness who was called in like regard."

12. Counsel for the defendant objected to the admission of this evidence, contending that he was prejudiced in two respects. First, because he was deprived of the opportunity to investigate this new evidence, both as to Mr Willis himself and as to what he would say; and secondly, because a different line in cross-examination would have been pursued with Mr Nolan, Captain Kirby and the claimant had this evidence been known about at the time.
13. In response to that the claimant's counsel said that what was in the statement was heralded in the other evidence already heard. When asked by the judge why then did he need this new evidence, the reply given was that it was "confirmatory" and that "it goes a little way further in [that] it produces an application form."
14. The judge ruled in the following terms:

"... I consider this is too late to be introducing evidence of this sort. If I thought it was going to significantly help me in this part of the issue then I might think again. I think there is some justification in the suggestion that the defendants would be, to a degree, prejudiced by its late production."

15. That is the first of the decisions now challenged by the claimant and it is convenient to deal with it at this stage.
16. On behalf of the claimant it is submitted that it was in the interests of justice that this evidence be admitted. It is said by Miss Ruck that the claimant sought to put forward Mr Willis in order to strengthen their case on the recruitment aspect of the case and that the judge would have been materially assisted by this evidence. Perhaps unlike the other witnesses already called at that stage by the claimant, Mr Willis was going to deal with recruitment as such from a position of some experience in that matter. Therefore as a matter of justice this should have been admitted.
17. Miss Ruck accepts that the judge's decision has to be assessed on the basis of what he was told at the time the evidence would contain. It is argued that any prejudice to the defendant (which is not conceded) could have been avoided by allowing the defendant such time as was necessary within the trial framework to make any investigations which they wished, and that that could have been achieved within the framework of the trial without any lengthy adjournment.
18. Reference is also made to a passage which is quoted in the skeleton argument from the claimant in the White Book, which is based on a decision of Buckley J in the case of Mealey Horgan Plc v Horgan, The Times, 6th July 1999. The White Book note at paragraph 32.10.2 states:

"... it will be unjust to exclude the party from adducing the evidence at trial save in very rare circumstances, e.g. where there had been deliberate flouting of court orders, or inexcusable delay such that the only way the court could fairly entertain the evidence would be by adjourning the trial (Mealey Horgan Plc v Horgan)..."

19. The starting point on this issue has to be CPR 32.10, whereby a party needs the permission of the court to call a witness in respect of whom a witness statement or witness summary has not been served within the time specified. That was the situation here. The trial judge had a discretion whether or not to allow Mr Willis to be called in these circumstances, a discretion which of course was to be exercised in the light of the overriding objective of the Civil Procedure Rules. It is to be observed that dealing with a case justly includes, so far as practicable, ensuring that the case is dealt with expeditiously and fairly. Fairly, of course, means fairly to both sides.
20. I emphasise that part of the overriding objective because I can see force in the points made at trial by the defendant about its need to investigate this witness statement. Certainly if the evidence was going to add anything of significance some time might well have been needed for such an investigation. Miss Ruck today tells us that Mr Willis' evidence would have been of significance; in effect, that he did add something which was going to be materially important beyond the evidence which had been given by the claimant's other witnesses.
21. That, however, was not how it was presented to the judge, who did not have in front of him a copy of the witness statement itself. As the judge indicated in the course of his comments, this evidence was not described when the application was made as being of particular significance. Counsel for the claimant, it seems to me, downplayed any significance by describing it as "confirmatory" of evidence which had gone before, save that it produced an application form.
22. In those circumstances, the judge seems to me to have been justified in taking the view that it was not going to help him significantly and that, in effect, the disadvantages of having this other witness called outweighed any value the evidence would have. It must also be borne in mind that no explanation for the lateness of this evidence was proffered by the claimant to the judge, save that it had not been thought necessary before. Yet this was not a witness whom the claimant's legal advisers had only just been able to track down. The claimant's solicitors had been in contact with Mr Willis since November 1997, for there is a letter from him of that date. The statement quoted from the White Book is not intended to give to parties the luxury of getting their case together after the trial has started, when that could have been done and should have been done at an earlier stage. Indeed, the decision of Buckley J, which is referred to in that note in the White Book, is one dealing with an application made almost one month before trial began, not, as here, during the course of trial itself.
23. Moreover, this was not an new issue with which the evidence would be dealing. The relevance of the claimant's conviction to his prospects of obtaining seafaring employment had been raised in the defence in February 2000 and had been re-emphasised and reiterated in the defendant's counterschedule of 24th April 2002.
24. Justice may sometimes require evidence to be admitted even at a stage as late as occurred in the present case. But that is only likely to be the situation where the evidence is going to be of significance, and where its importance outweighs the prejudice to the other side. But this evidence was not presented as being of real significance and, as Miss Ruck concedes, this matter, namely the exercise of the judge's discretion, has to be dealt with on the basis of the knowledge which he had about this evidence and the way in which it was presented to him. Its admission would have been likely to involve some extra time being allowed to the defendant to investigate, and in all those circumstances I, for my part, cannot see that the judge went beyond the range of the proper exercise of his discretion when he decided not to admit it.
25. I turn then to the second matter raised in these proceedings. The judge heard evidence from the claimant that he was committed to a return to sea. There was also evidence from Mr Nolan and Captain Kirby, which the judge accepted, that the claimant had been a successful and well-regarded member of the crew when he had been at sea prior to redundancy.
26. In the judgment it is noted that Mr Nolan accepted that shipowners would be strict about employees not being involved with drugs, and that he had not known anyone at sea who had been convicted in connection with drugs.
27. The judge then went on to summarise the evidence of the claimant's employment expert, Mr Nicoll, and that of the defendant's, Mr Haworth. He noted that Mr Nicoll had never been employed in the shipping industry or in the recruiting of seafarers. It seems that Mr Nicoll's experience had been in connection with personal injury claims by seafarers. Mr Nicoll accepted in the course of his evidence that a conviction such as that which the claimant now had would be regarded very seriously, and that employers would be conscious of the effect upon their reputation were anything to happen to or on a ship which might relate to drug use. Mr Nicoll also agreed that the industry was relatively small and that a bad apple would find it more difficult to get work. He put the claimant's chances of getting work at 60 to 70 per cent. That was on the basis that the positives in the claimant's background outweighed the negative of the drug conviction.
28. The judge regarded Mr Haworth as having had far greater experience in recruitment, training and appointment of seafarers. Moreover, he found Mr Haworth to be, as he said, "a much more impressive and measured witness". Mr Haworth had referred to the code of conduct for the merchant navy, paragraph 9 of which provides for dismissal for the unlawful possession or distribution of drugs. The judge said of Mr Haworth:

"In summary his view was that a combination of the time spent away from sea, including recovery from his physical injuries ..., together with his drug conviction, would make it most unlikely that the claimant would get back to sea."

29. In the judge's view this witness was much closer to recruitment and employment issues than either Mr Nolan or Captain Kirby, and he preferred Mr Haworth's assessment as against that of Mr Nicoll. The judge concluded that it was most unlikely, albeit not impossible, that the claimant would have returned to sea and he assessed his chances at no more than 20 per cent.
30. It is that assessment which it is now sought to challenge. On behalf of the claimant it is submitted that the judge failed to give due weight to the evidence of the claimant's witnesses, including the claimant himself; men who had had extensive experience of the offshore marine industry. Miss Ruck stresses that there is no reference in the judgment to the witness statement from Captain Anderson, who had said there that he would have been able to assist the claimant in obtaining work in the merchant navy once he had recovered.
31. Miss Ruck goes on to emphasise that the judge heard from Mr Nolan and Captain Kirby that the claimant had been well regarded as a crew member when he had been at sea, and that those two witnesses had particular experience of the offshore industry. They, when asked, said that the claimant's conviction would not be a bar to his employment. Miss Ruck accepts that they conceded that they did not know of anyone with a drugs conviction. It is contended that Mr Haworth did not have experience in the relevant industry, which for this purpose was not the shipping industry or the merchant navy as a whole but rather the offshore industry. Mr Haworth, it is said, had been particularly concerned with recruitment to tanker and other deep sea fleets. He had never worked for any company operating offshore vessels, and in recruitment terms he had only dealt with young trainees rather than with established seafarers. Consequently, it was wrong, it is said, for the judge to have attached such weight to his evidence and to have, in effect, attached so little weight to the evidence given by Mr Nolan, by Captain Kirby, Captain Anderson and the claimant himself.
32. In my judgment the crucial question is whether the judge was entitled to prefer the evidence of Mr Haworth on the prospects of the claimant obtaining a job at sea, particularly in the light of his drugs conviction. I say that because were that evidence of Mr Haworth to be accepted, it was evidence which clearly justified the judge's ultimate finding of a 20 per cent chance of the claimant obtaining such employment had there not been the breach of duty by the NHS Trust.
33. In that regard one is bound to accept that there is no specific mention in the judgment of the written witness statement from Captain Anderson. That of course does not mean that the judge failed to take it into account. It is perhaps understandable that no specific reference is made in the judgment to it. First of all, because nowhere within it does Captain Anderson deal with the effect of the conviction on the prospects of his son obtaining such employment in due course at sea had there not been the breach of duty, and that was an important part of the central issue in this part of the case. Moreover, that written evidence was of course not tested in cross-examination and therefore it is entirely justifiable to attach less weight to it than would have been the case had it gone through that particular process.
34. So far as Mr Haworth is concerned, it is quite clear, on the evidence, that he had much more experience of the recruitment of people for seafaring employment than any of the witnesses called to give oral evidence on behalf of the claimant. Mr Nolan had been a chief engineer. Captain Kirby had been a captain, not himself involved in any way in the recruitment of seamen on any of his ships. Mr Nicoll, as the judge pointed out, had never been involved in the recruitment of seafarers, but had been concerned principally with the personal injury aspects of that occupation. The evidence showed that Mr Haworth had been and was involved in placing people on ships of all kinds, not simply tankers or other deep sea ships. At one point he describes his experience as having ranged the whole gamut from passenger liners to dredgers, and it was made quite clear in the course of cross-examination, in passages which have been referred to in the course of argument this morning, that his experience also included placing men on ships operated by offshore companies.
35. On the drugs aspect neither Mr Nolan nor Captain Kirby had ever come across any seafarer with a drugs conviction. The code of conduct makes it clear that a drugs conviction is treated very seriously.
36. It may be that Mr Haworth had been concerned principally with young recruits rather than with experienced seafarers, but I can see no reason to think that he did not have a sound appreciation of the significance of a drugs conviction. The judge below heard the witnesses, and in my view he was entitled to prefer the evidence which he heard from Mr Haworth on this aspect of the case. This was a case where there was a conflict of testimony. The judge preferred that given by Mr Haworth and the judge gave clear and rational reasons for preferring Mr Haworth's evidence. In those circumstances, I can see no basis for concluding that the judge went wrong in the conclusion which he reached. Once that position has been obtained, as I have indicated already, the evidence then clearly justified the finding of no more than a 20 per cent chance of re-employment at sea for the claimant.
37. For my part, therefore, I can see no real prospect of success for either of these two appeals. In those circumstances, I would dismiss this renewed application.
38. LORD JUSTICE ALDOUS: I agree.
ORDER: Applications for permission to appeal and to admit the evidence of Paul Willis refused; the applicant to pay the respondent's costs, to be the subject of a detailed assessment if not agreed. (Order not part of approved judgment)