England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Roger Cooke)

		Royal Courts of Justice Strand London WC2 Monday, 25th February 2002

1. LORD JUSTICE SEDLEY: Mr. Mutuma, who has appeared before me today in person as he did before the county court, was an assistant day care worker working with handicapped young people. On 24th September 1994 he strained his back in the course of toileting a heavy patient using a specially designed hoist to lift him from his wheelchair. He carried on working, although in pain, until a further unsettling experience when the handrail of a bus gave way made him realise how vulnerable he was. He had to stop work. I mention that account, which he has explained to me today, because it appears to have been possibly misunderstood in the county court proceedings.
2. Mr. Mutuma's action in the county court was based upon his assertion that the strain to his back was caused by his fellow care worker, Richard O'Donoghue, suddenly letting go of the patient's feet while Mr Mutuma was lifting the patient under his arms. This joint movement, according to Mr. Mutuma's case, was a necessary part of the lifting operation, designed (I am using my own words) to free the patient from the wheelchair and make the start of the hoist lift possible. The health authority by whom he was employed and whom he sued contended that there was never any need for a manual lift and that, properly operated, the procedure was to harness the patient in the wheelchair and let the hoist take the strain from the start. This was one part of the defence. The other part of the defence was to question whether any such accident had occurred to Mr Mutuma since the defendant had no record of any report of it.
3. As to the appropriate procedure, they relied upon the evidence of a fellow worker, Mr. O'Donoghue, evidence which the judge accepted. It was suggested against Mr. Mutuma that he and Mr. O'Donoghue were in constant disagreement about the right procedure because Mr. Mutuma, who is a large and clearly physically strong man, preferred, it was said, to use his own strength to help with the lifting. The judge also held in the course of his judgment that Mr. Mutuma had changed his account of the exact mechanism of the accident so radically that he now doubted whether either version was correct. The judge therefore rejected the suggestion that Mr. O'Donoghue had caused the accident by releasing his part of the patient and concluded that it was more likely that Mr. Mutuma had hurt his back by using his own preferred method in breach of the prescribed procedures.
4. Mr. Mutuma comes to this court, having been refused permission to appeal by Judge Cooke, in order to make a series of points of which two need to be mentioned at this stage. One is that he had become so confused and distressed in the course of trying to present and summarise his own case that he ought to have been given at least some time to compose himself. More pointedly, he says that a key document went unaccountably missing from the documents which should have been before the court. The document is a form known as MED4. It is a form of which an example can be seen in relation to another patient at page 104A of the bundle before the court. Box 5 is captioned "Transfers?" and contains space for detailed directions to be given as to precisely how the individual patient is to be moved. At page 104B of the file are extracts from the diary of Miss Linda Compton, an occupational therapist who was responsible for laying down these procedures. She has a diary entry for August 23rd 1994: "Write up instructions re Stuart". She has noted that this probably relates to the patient in question, Stuart Edwards, but after all these years she cannot be certain. Mr. Mutuma is certain. He says that there was indeed, a month before the accident, placed on file an MED4 containing specific instructions about the lifting and moving of Stuart Edwards which he was following when the accident occurred. That there was such a form is confirmed in his submission by what is said at page 90 of the bundle in paragraph 3D by the defendant's witness, Mr. Davies, the manager of the Broadfields Resource Centre:

"There is now produced and shown to me marked MED4 a copy of the risk assessment which was completed in August 1994".

5. But no such document, it appears, reached the bundle for the court. Instead, there was produced and relied upon a document which can be seen at pages 100 to 104 which, although parts of the title are obscured, relate to the use of a hoist for Stuart Edwards. It was, however, Mr. Mutuma submits, a document which could be backdated to 4th February 1994 (see the associated document at pages 105 to 107 of the bundle). That being so, says Mr. Mutuma, it had been superseded by the document to which Mr. Davies refers but which has vanished.
6. Mr. Mutuma's written grounds of appeal are lengthy and they contain quite serious allegations of fraud. Before me he has made it clear that forgery is not the word best adapted to what he seeks to say. What he is wishing to put before the court is a much more moderate submission, that there has been a substitution of the earlier document for the later, accompanied by the mysterious disappearance of the later. The judge, he says, told him that, insofar as the absence of the MED4 from August 1994 mattered, it would be held against the defendants; but in the event, says Mr. Mutuma, it was not.
7. Reading the judgment, it is clear that the entirety of the case went against Mr. Mutuma. In particular, the judge took the view that the two discrepant accounts alone were such as to cast doubt on whether the accident had happened, either as alleged or at all. I have to say that if that were the only reason I might give permission to appeal because, to me at least, the discrepancies are not obviously radical or serious. I may be wrong, but it may by itself be an arguable overstatement by the judge of the inferences capable of being drawn against Mr. Mutuma on that score. But there was much more in the case, including in particular the judge's acceptance of Mr. O'Donoghue as a credible and reliable witness against Mr. Mutuma. In those circumstances, it may be of central importance to know what had happened to the MED4 which, certainly on the face of the defendant's own evidence, appears to have come into being a month before the accident and then to have disappeared from the documentation.
8. I propose to adjourn this application so that inquiries can be made. The way in which that is to be done is this. This judgment is to be transcribed at public expense, a copy to go to Mr. Mutuma and a copy to the London Borough of Barnet as health authority. They are to have 28 days from today in which to submit to this court and to Mr. Mutuma an explanation in writing as to what they say the true situation was about the MED4 form relevant to Stuart Edwards at the date with which we are concerned, namely 24th September 1994. They are also at liberty to explain how the matter was dealt with before the judge at trial. Mr. Mutuma will then be at liberty, if he is dissatisfied with the explanation, to renew his application for permission to appeal before me. If and when the renewal is made I will decide whether I ought to hear the London Borough of Barnet orally in opposition to Mr. Mutuma or whether it is unnecessary to do so. I have discussed with him the costs implications of appealing if permission is given. He will need to have those in mind in deciding what to do next. Meantime, however, for my clarity of mind as well as for his, the health authority must have the opportunity to explain itself in writing. The application is adjourned for that purpose.
Order: Application adjourned as per judgment.