IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
(HIS HONOUR JUDGE NICHOL)
Tuesday 18 June 2002
B e f o r e :
MR JUSTICE COLLINS
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|STANLEY A COLEMAN AND HILL|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
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MR L ASHWORTH (Instructed by Messrs Pinsent Curtis Biddle, Birmingham, B4 6BH) appeared on behalf of the Respondent
Crown Copyright ©
"He continued to have episodes of buttock pain culminating in further time off work and in 1990 he had more severe pain in the back of his leg with numbness in his right foot."
"Had he had a severe injury to his back in the accident he would not have returned back to work as a bus driver within a period of four weeks as this occupation is known to exacerbate back problems. This gentleman was always at risk of having problems from his back because it is noted he had asymptomatic underlying degenerative changes that were present at the time of the accident. I believe that the accident caused an enhancement factor of his degenerative changes. Noting his age at the time of the accident of being 46 and his occupation it would be likely that had he not had the accident he would have suffered similar symptoms within a relatively short period of time. I would, therefore, anticipate that the accident had an advancement factor of no more than some three years, ie had he not had the accident then certainly by 1991 he would have been suffering similar symptoms and by 1994 he would not have been able to carry out his occupation as a bus driver."
"There was evidence of spondylitic changes in the lumbo-sacral spine on the CT myelogram. [He] must have had some pre-existing spondylitic changes in his back. The injury has led to worsening of the spondylitic changes and as a result of this he has suffered nerve root compression at some time. In view of the persistent symptoms and the absence of changes on myelography one must assume that he must have some scarring in the nerve roots.
I think it of relevance that immediately after the accident there was persistent pain which however was helped by epidural injections and it was only subsequently that he developed an exacerbation of his back pain and numbness and loss of function in his right foot. I would therefore contend that although the accident has played a part in the development of his symptomatology it cannot be held to be entirely responsible."
"With regards to [that] incident, I believe this is a separate episode of back problems which would have occurred irrespective of the incident in 1987."
"Where a party sends a written question or questions direct to an expert and the other party is represented by solicitors, a copy of the questions should, at the same time, be sent to those solicitors."
"I need to explain one matter, in relation to which there is some complexity, namely expert evidence.
The position seems to be that my client has leave to call four experts (para 2, order of 5 May 1998). The Court will probably be relieved to hear that my client does not seek to take advantage of such leave and intends to call only two:
(i) Mr Stuart Brooks, a consultant orthopaedic surgeon;
(ii) Mr Matthew Kurian, a psychiatrist.
Mr Brooks was first instructed in July 1998 and so was not in contemplation when the order was made on 5 May 1998 but, notwithstanding this, I take the view that, since my client seeks to call only two experts when he has been given leave for four, he should not need to apply for leave specifically in relation to Mr Brooks. I am aware, however, that this point may be controversial and so am copying this letter to Pinsent Curtis (for the Defendant) to enable them to make submissions on the point if they wish to do so."
"An unhappy history presents itself to me on this narrow point about whether we should have a further expert. An extraordinary number of experts seem to have been produced over the years. I am told by Mr Friel, in reply, that the other experts' reports, which have been served and used at earlier stages, and disclosed to the defendants, are not to be relied on because they are old, and yet the proposition is that we come to the expert, who is the treating surgeon, whose report was to the GP, as I understand it, back in 1988. He was probably one of the very first people who did a report, and he is probably the oldest expert involved in it.
The difficulty is not simply a balance of prejudice as far as the delay is concerned after this period, putting the matter off for another five or six weeks, which is, in reality, neither here nor there.
There is more to it, however, in that we do not know what this other person might say. It might be Professor Emery is going to embarrass the defendant if he comes out with a different basis of his view of the matter from that of Mr Brooks. If, on the other hand, he does not then there is no point in postponing the inevitable. If he turns out to agree with Mr Brooks' view of the matter, and thus with Mr Cherry's view [the orthopaedic surgeon for the defendants] of the matter, it is simply going to compound the confusion in this case, as I see it.
So, notwithstanding that a period of six or eight weeks' delay is not out of proportion when looked at against a history of 12 or 13 years or so, I think that it is now unrealistic to suddenly start producing potentially another rabbit out of the hat, which would embarrass the defendant. My view of the matter, therefore, is that it would not be appropriate to allow yet a further expert to be introduced into this matter, and the experts who are involved, for whom permission has been given, should carry out their duty."
"Experts, when they do [have joint conferences] frequently change the stance that they originally had, and that is one of the points of asking them to have joint discussions, to bridge gaps between them, which inherently means that there has got to be give and take on the part of each expert, and that in part should resolve the problem the claimant suffers from, or thinks he suffers from, and, as Miss Shelley [counsel for the defendant] says, it does rather savour of a fishing expedition, namely get somebody else again."
"It is contended on behalf of the claimant, and was contended before the district judge, that that was a contradiction of that which he had said in his earlier report. I do not see it as such, and I do not think, from what I can understand of the note of the district judge's judgment, that he did either. It seems to me that was a question that had never been addressed in Mr Brooks' original report. I accept that the claimant's solicitors took the view, and based their claim for loss of wages on the assumption that, if he succeeded in the action, he was able to claim loss of wages as a bus driver up to 1994, and I certainly accept that it is a pity that they had not refined matters by checking."
"Returning to the history for a moment, no application was made in the proper way, supported by evidence to the learned district judge. There had been certain failures in management of the case, and District Judge Dowling had directed that there should be a listing hearing rather than simply a listing appointment before the diary manager for the reason which he gave in his order, and it was either on the day or on the day before the hearing that the defendant's solicitors were notified that this application was to be made.
Under the Civil Procedure Rules there is no doubt that the district judge was required to deal with the matter on the material that he had before him. That material was very limited, and it seems to me that on the basis of the material he had before him there is no criticism that can possibly be levelled at the way in which he dealt with the matter. In those circumstances, not surprisingly the claimant wishes to put in a large amount of additional material which, save for the final medical report of Professor Emery, I have in fact read."
"I am bound to say that I do not think there should. The onus was on the claimant's solicitors to put in the application in the right way in the first instance, and they failed to do so. But whatever they have done, and I have seen all the documentation, if I were to deal with this matter as a rehearing it would not change the basic point, which is this, that what Mr Brookes did was to answer a further and necessary question that the defendants were bound to put to him at some stage, and to give what I am sure was his honest opinion. That is unfortunate for the claimant, but it would be quite wrong for the claimant at this stage, his opponents having got a straight answer to a straight question, to say, 'Well, I'm not satisfied with that, I want to get someone else who will take the view that I could have worked until 1994 rather than 1990'. That is 'expert shopping', and it may well be that Professor Emery would have assisted him in that respect.
But, in my judgment, the overriding objective requires cases to be treated justly. There is nothing in the circumstances I have related to show that either the claimant or the defendant will suffer injustice as a result of the decision that was made by the learned judge, and accordingly I reject the application to covert this appeal from a review into a rehearing, or to admit the evidence which was not before the lower court. The reason I do that is quite plain: I do not think that, in the circumstances, it would affect the outcome and, as I have said already, I think that the learned district judge's decision was right."
"This gentleman, with pre-existing x-ray changes of spondylosis change had an injury to his back which resulted in sciatica. This was felt to be due to a bulging prolapsed disc which occurred as part of his injury. Since that injury he has had an acute on chronic problem with varying amounts of radicular symptoms which have responded to epidural injections (additionally he has also had coxxygeal symptoms).
Spondylitic changes per se do not necessarily produce lumbar disc symptoms. There is nothing that would have inevitably meant that he would have developed symptoms had he not had the accident."
"I would disagree that this has to be regarded as an entirely separate entity. I would contend that it was possible that an individual could injure his spine and produce a prolapsed intervertebral disk, which could then have a subsequent weakness which would have been prone to acute episodes in the future. The separation in time of the two episodes does not prove that they were not related, in my opinion."
"The relationship between x-ray changes and symptoms in the spine as in degenerative change elsewhere is poor, it only becomes better with very severe disease. It would be quite impossible for many bus drivers who have performed normally throughout their career to have had x-ray changes of an equivalent nature to Mr Ahmed.
Once an episode has occurred, further episodes are likely. This is based on the mechanical weakness produced and this is particularly relevant for an intervertebral disk and also because of the general propensity to pain that is induced.
Finally, the episode in 1990 was anatomically similar to the one that occurred previously in 1987, it is therefore more than an unlikely possibility that these two are related."