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 BIRMINGHAM COUNTY COURT
(His Honour Judge Playford QC)

		Royal Courts of Justice Strand London WC2 Friday, 8th February 2002

Friday, 8th February 2002

1. LORD JUSTICE BROOKE: This is a very sad matter. I gave an earlier judgment on 30th October 2001 (No. 2001 EWCA Civ 1626), and I will read certain passages in that judgment simply to set the scene.
2. Mr Pearson is seeking permission to appeal from the judgment of Judge Playford QC in the Birmingham County Court on 15th February 2001. He made an application in connection with that application for an order that certain documents be disclosed to him for the purposes of his appeal.

"[He] had an accident in Digbeth High Street, Birmingham on 20th September 1997. He was the driver of his car, which was stationary, and a car driven by Mr Ahmed, the defendant, ran into it from behind. His passengers settled their claims successfully. There has never been any dispute that Mr Ahmed was liable.

Mr Pearson is now about 35. At the time of the accident he was a car assembly production worker employed by the Rover Group. He was absent from work because of his injuries until 5th October 1997 (a period which included a short holiday). He was then back at work until 24th November 1997, and he has been off work ever since. He claimed damages originally for £40,000 and claimed that his loss was continuing. The doctors say that he suffered a soft tissue injury to his lower back, that being an injury from which one would not expect any lasting disability.

It appears that Mr Pearson was approached by a company called Hamco UK after he had made his claim. Hamco said that his insurance company had asked them to handle his case for him. The Highway Motor Insurance Group had issued his insurance certificate. He was then approached by a solicitor who said that Hamco had asked him to handle his case. It appears that he was having the benefit of `before the event' insurance ... That company continued to finance the support of his case until September 2000, shortly before the trial.

The cause of Mr Pearson's continuing pain has been a mystery to doctors who have been asked to advise him. The first doctor was Mr Roger Davies, who produced a report in December 1997. He said that Mr Pearson appeared to have suffered a generalised muscular strain injury and there may have been a degree of nerve root irritation. He was optimistic that the pain in his lower back would gradually subside with the passage of time. He said that Mr Pearson was suffering a degree of psychological symptoms and that his work prospects gave understandable cause for anxiety, given his physical occupation. He said that it might be 18 to 24 months before the psychological symptoms had settled.

Mr Pearson's solicitor then instructed Mr Carter, who is a consultant orthopaedic surgeon. He produced four reports on Mr Pearson's condition, ending in February 2000. The defendant instructed Mr Holl-Allen, another consultant orthopaedic surgeon. He produced four reports over the same period. Eventually the two doctors met and they produced a joint report ... . In [it] they concluded that they were both of the opinion that he had sustained a soft tissue injury to his lower back. His continuing symptoms were in excess of the physical signs and investigations performed. Both they and various other specialists had been unable to offer an explanation for an organic cause of his continuing symptoms and they were of the opinion that the continuing symptoms in his back after the first two or three months ... were a consequence of pre-existing degenerate constitutional disease."

3. In other words, that he had trouble in his back before the accident happened even though it may not have been apparent.

"They were both of the opinion that, on the balance of probabilities, they would have expected Mr Pearson to return to work three months after the accident.

... shortly before the case was first due to be tried Mr Pearson's solicitors withdrew, no doubt because they advised that a satisfactory offer of settlement had been made. Mr Pearson appeared in person before Judge MacDuff in November 2000, who vacated the trial of the action listed for that day and made certain directions for the trial. That took place before Judge Playford on 15th February 2001. The judge was understandably unable to award Mr Pearson any compensation except on the basis of the agreed report. He therefore awarded £500 for loss of earnings and £2,000 for general damages, which included an award for the psychological effect of the accident.

Mr Pearson [was] aggrieved because he [did] not think that his case had been properly handled. He was concerned when he discovered that the Highway Motor Insurance Group were also Mr Ahmed's insurers, a matter that came to light when he saw a surveillance report addressed to that Group. He [was] also concerned that the orthopaedic surgeon, Mr Carter, who was instructed ultimately by the Highway Insurance Group through Hamco, did not do full justice to his complaints. He has shown me a letter from Mr Sturman, a consultant in neurology and rehabilitation medicine. He has highlighted the passages in Mr Sturman's report which were summarised by Mr Carter without including other features of the report. He is worried that the fact that the same insurance company insuring both himself and the defendant has led to his case not being properly presented to the court.

[When I saw him on his original hearing of his application in October he was faced with] the difficulty that City Hospital and his GP [were] making it difficult for him to obtain copies of his own records, except at a high cost. He also [believed] that, if somehow or other an order could be made for the disclosure of the file of his insurance brokers, this might lead to a useful line of enquiry. He [told] me on that occasion that he [has] consulted a number of different lawyers, who have been unable or unwilling to help him. One of the difficulties [was] that legal aid [was] no longer available for this class of case."

4. I adjourned his application on 30th October in order that the court should not deal with it on that occasion without a further effort being made to see if information could come to light which would assist Mr Pearson either generally or in connection with this appeal. I suggested that he should seek advice from the Citizen's Advice Bureau at the Royal Courts of Justice, but when he went down to see them it appears that they were unable to help.
5. He then approached a solicitor in order to obtain help in getting his medical records and files. That solicitor's efforts have elicited not only the general practitioner's file but also, very recently, the records of the hospital; but these records only go back to the beginning of 1999, and Mr Pearson also says that certain documents are missing from them.
6. I studied the general practitioner's file, which contains the reports from the various doctors at the hospital to the general practitioner, which Mr Carter sought to summarise in his report dated 29th November 1999. Mr Pearson accepted that the documents which have now come to light did not really take the case any further. Nevertheless, he maintained that the fact that in his summary of the letter of 26th January 1999 Mr Carter omitted certain matters tended to show that Mr Carter did not do a full job for him when he was advising him and subsequently agreed to the joint report.
7. I have considered the material which Mr Pearson has put in front of me. I agree with him that the further documents do not cast any particularly useful light on his anxieties. In my judgment, the fact that, in his summary report, Mr Carter only sought to pick out what he thought were the main items in the letter of 26th January 1999, without quoting it at any greater length, in what was already quite a long report to the company which was instructing him, does not, in my judgment, take the matter any further in relation to any hope that Mr Pearson might have that he could disturb the judgment of Judge Playford.
8. Mr Carter's report finishes, in accordance with the current practice following the Woolf reforms:

"I understand that my duty as an expert witness is to the Court. I have complied with that duty. This report includes all matters relevant to the issues on which my expert evidence is given. I have given details in this report of any matters which might affect the validity of this report. I have addressed this report to the Court.

The contents of this medical report are true to the best of my knowledge and belief."

9. That is signed by Mr Simon Carter, who is a Fellow of the Royal College of Surgeons, Consultant Orthopaedic Surgeon and a Senior Lecturer at the University of Birmingham. He also has other professional qualifications.
10. I indicated to Mr Pearson on the last occasion that I was very doubtful that the court had any power to make any orders for disclosure of the type to which he has referred. I am now formally satisfied that we have no such power in relation to an appeal of this kind. If he wishes to pursue complaints about the way in which those who were handling his claim handled it for him, then he must take those complaints forward in some forum other than an appeal against the judgment of Judge Playford.
11. On the material that I have seen, there is no reason to suppose that there would be any hope of setting aside the judgment of Judge Playford. He estimated the amount of damages which should properly be paid in relation to the limited injuries shown in the joint report. Sadly, for whatever reason, Mr Pearson has suffered, and continues to suffer, from difficulties of one kind or another, but those who are representing him in the action could not be satisfied that any of these continuing injuries were caused by the negligence of Mr Ahmed. If he had other problems which were not caused by that negligence, then the law does not require the negligent driver or his insurers to pay compensation.
12. For these reasons, I dismiss the application for further discovery. I also dismiss the application for permission to appeal.
Order: Application dismissed.