England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 October 2015

MR JUSTICE JAY:

1. This is an appeal against the decision of Master Leslie given at a case management conference on 21 July 2015. He refused the application brought by the claimant for permission to rely upon the expert evidence of an architect. That evidence was relevant to late-advanced claims for maintenance and running costs, as well as for property adaptation.
2. This case arises out of a road traffic accident which took place on a pedestrian crossing on the Finchley Road in Temple Fortune on 5 November 2010. The accident was caused by the negligent driving of the defendant and liability is not in dispute.
3. At the material time the claimant was 27 years of age. It was a dry evening and she was walking to a local synagogue for a Friday night service. The exact path she took, whether she, for example, parked a car, and the location of her flat in relation to the synagogue are matters which are unclear to the court at this stage.
4. At all events it is clear that the claimant had a pre-existing genetic condition, which is known as osteogenesis imperfecta. In consequence her skeleton has not developed properly and in her teenage years she was prone to fractures. However, her last fracture occurred at the age of 14, and at the time of the accident the claimant was in gainful employment.
5. In consequence of the accident the claimant was knocked to the ground, the emergency services were called and she was taken to the Royal Free Hospital in Hampstead. She was however discharged the same evening.
6. About two weeks later the claimant's physical condition, on her version of events, deteriorated very significantly. She is now left - and I emphasise on her version of events - severely disabled and effectively wheelchair-bound. It is her case that whereas before her accident she managed to live in a first-floor flat, she now requires one-storey accommodation: hence the accommodation claim.
7. There is a mass of medical evidence which was before Master Leslie. The evidence is from orthopaedic experts, neurological experts, neurosurgeons and psychiatrists. There is also expert evidence from consultants in pain management.
8. It would be fair to say, without pre-judging the issue, that this case is complex and has baffled some of the experts. The basis thesis which will be advanced by the claimant at trial is that although the precise causal mechanism may not be wholly clear, the accident set in train a series of anatomical or physiological events which have clearly left her severely disabled.
9. The defendant's case is that viewed in these physiological terms the claimant's injuries are inexplicable. There must be another reason for them. And experts in pain management and psychiatry have hypothesised as to what those might be. Of course underlying the defendant's case is the suggestion, scarcely thinly veiled, that the claimant is a malingerer.
10. I should emphasise that it is not possible for this court to reach any firm conclusions as to the rights and wrongs of the parties' respective medical cases on the available evidence. This is because the trial process has not started; by definition, therefore, the evidence has not been tested. All that the court could properly do is reach some preliminary views and impressions. It cannot properly reach any conclusions having weighed up all the evidence, including the oral evidence of the claimant.
11. However, there are some unusual features about this case. The claimant had a sad childhood with her parents dying prematurely. There are, I think it is fair to say, issues concerning her religious identity, her cultural identity. The impression she gives is that her life was entirely stable and happy before this accident. There are reasons to doubt whether she is right about that. However, any judicial concern about the claimant's case cannot be expressed with any greater force than I have just done. The court genuinely is and must be in a state of agnosticism.
12. Looking at the medical records which probably are the best guide to what was happening at various relevant points in time, though of course they are not infallible, it appears to be common ground that in 2002 the claimant was having problems with her ankles and underwent at least one operation. There are quite a few medical and related records for the year 2009. In March 2009 she saw her GP who noted that she had had a fusion to the right ankle which now felt painful. On 9 June 2009 her GP said in referring her for an orthopaedic opinion that she had developed bowing of the right leg and suffered from quite a lot of pain after walking only 10 metres. She used a stick for support.
13. On 17 June 2009 she made an application for disability living allowance. That was completed by her GP. Subsequently, there is reference in the papers to that application being unsuccessful.
14. On 24 June 2009 she made an application for rehousing. There is a fair amount of evidence in relation to that application. I have not seen the relevant form, but it appears that a doctor completed it and he/she must have done so on the basis of what was being imparted by the claimant. The claimant was saying that stairs are very difficult; she has difficulty walking any distances; she uses sticks and on occasion a wheelchair; there is 10 metres of walking, then pain.
15. The thrust of the application was that the claimant had special needs and in particular needs for ground floor accommodation. The position, as I have already indicated, is that she is living in a first-floor flat with a lift. Mr Julian Picton QC took me to other entries in the bundle which relate to June 2009. Mr John Greenbourne in his reply referred to an entry in a care report which was to the effect that before the accident she was restricted in her walking and standing tolerance to walking half a mile and standing 30 minutes. In my view, this is not quite the same as the form dated 24 June 2009.
16. Going back to the chronology, her GP was writing letters to the orthopaedic department in July 2009. On 10 August 2009 a claim form was sent to Camden from the GP which reinforced on my understanding the claim for ground floor accommodation. There was then a radio silence in the medical records. Indeed, I do not know on the basis of what has been put before me, and I suspect that Master Leslie did not know it either, what happened to the application for re-housing; but it is reasonable to infer from all the pressure that is on local authorities at the moment that that application has not been determined.
17. It is also unclear whether the claimant's symptoms were continuing between August 2009 and the date of the accident. At least two inferences are capable of being drawn: first, that there was no change between Summer 2009 and November 2010 and the Claimant is stoically awaiting the result of her application. Another interpretation is that the events of 2009 were (to use the vernacular) a blip, and that there was an improvement.
18. The difficulty for present purposes is that this issue has in part been generated by the claimant herself in that her witness statement is solemnly silent about these matters. It rather gives the impression that everything was fine and well over the whole of the relevant period, including the summer of 2009. I do find that somewhat forensically naive on her part, but then it may be wrong to read too much into the way these witness statements are prepared or to assume too much knowledge and understanding of claimants for whom the legal process is after all entirely unfamiliar. What I am saying in effect is that this is a forensic point which may or may not appeal to the court having heard and seen the claimant in due course.
19. The Master was taken to the relevant material by Mr Picton, and a transcript of the hearing is of course available. Mr Picton's submission in effect was that there was no real prospect of the claimant making good her accommodation claim. The Master's decision is quite brief, although I agree with Mr Picton that he is not required on this sort of occasion to give a detailed judgment. The parties' expectations must be different from those which they might reasonably have if the matter is considered at the level of High Court judge.
20. I set out the Master's reasons in full before I analyse them. He said this, missing out irrelevant words:

"I did not think it is reasonably required because I do not think the issue is likely to commensurate. The notion is that this young woman has had various serious problems with her bones: osteogenesis imperfect".

Mr Greenbourne then interjected: "Master, I am sorry to interrupt, but there is no suggestion by anybody that it is degenerative." The Master continues:

"No; I understand that, but it makes her vulnerable. Indeed she was vulnerable possibly or probably in 2009 when she suffered an accident to her ankle. As a result of that she applied for or was given some form of disability housing and so on and so forth. There would have come a time, no doubt the defendant will be saying, with some prospect of success, that this would have happened anyway. I simply cannot see that as a result of this accident whether - as is known, Scenario 1 or Scenario 2 arises - there is any real likelihood of the court saying that accommodation needs arise as a result of this accident. If they arise as a result of the accident, then the answer is that they might have arisen or would have arisen in any event as a result of her condition. Not reasonably required."

21. Mr Picton QC's very clear submission before me runs along these lines. He hints that if I were trying the matter myself I might be apt to reach a different conclusion. He emphasises rightly that this is an appeal and not a re-hearing. The Court of Appeal have said on at least two occasions that in relation to case management decisions the higher court should only interfere if the decision appealed against is plainly wrong. As Arden LJ pointed out in one case, the judge dealing with case management is usually better equipped to deal with these issues. Mr Picton, armed with that authority, submitted that the decision of Master Leslie was well within his case management discretion. In effect he applied Part 24 by analogy. There was incontrovertible evidence relating to 2009 which the claimant cannot surmount. Therefore, the court should not subject the Master's reasons to too close a textual analysis. It is not sufficient, said Mr Picton, that this court would itself have reached a different conclusion. One has to identify by analysis a flaw of principle in the Master's decision or conclude that it was plainly wrong.
22. In my judgment, these were attractive submissions but I cannot accept them. My starting point is the Master's reasons which in my view betray a varying emphasis. On the one hand, he appears to be saying that there is no real likelihood of the court concluding that the accommodation claim could succeed. On the other hand, he expresses himself far more tentatively, using phrases such as "with some prospect of success" and "might have arisen" or "would have arisen". That in my view is not altogether satisfactory.
23. In any event, I agree with Mr Greenbourne that there is a point of principle here. This decision was taken in the context of a case management conference, but in my view it is not the sort of case management decision to which Arden LJ is referring. Those decisions typically engage issues of discretion, and first instance tribunals must be permitted to get on with it and to reach these decisions without a proactive appellate approach.
24. The position is different here since the Master was effectively, at least on one interpretation of his reasons, applying a sort of Part 24 summary judgment test. That depends on an evaluation of all the available evidence seen in its proper context. There might be some room for differences of opinion, but there is no issue of discretion.
25. I accept as a matter of principle there might be circumstances in this sort of litigation where the court could properly say under the decision-making rubric of Part 35 of the CPR that expert evidence is not reasonably required because the underlying claim has no real prospect of success. Those cases, however, will be comparatively rare. Rarely in my view would this be a proper occasion for determining what are essentially acutely disputed matters of oral evidence, as well as of expert opinion. There may be weaknesses in parts of the claimant's case and her witness statement is, as I have already pointed out, far from satisfactory in one respect as to the deafening silence in relation to the events of the summer 2009, but her evidence has not been tested. None of the evidence in the bundle has been tested. This case depends acutely not just on expert opinion but on the court's assessment of the credibility and reliability of the claimant's account.
26. In my judgment, the Master reached the wrong decision; effectively I say for three reasons. First, his short reasons are not sufficiently clear and they vacillate between applying by implication the test in Part 24 and applying some different and weaker test. Secondly, on my view of the evidence (giving the Master some degree of latitude in his assessment of it) one cannot properly conclude that the accommodation claim has no real prospect of success. It is not so weak in the context of this personal injuries' claim that the claimant should effectively be closed out from court on the issue at an interlocutory stage. Thirdly (this point is related to the second point), there will only be rare occasions on which this sort of debarring exercise, using Part 24 by analogy, should appropriately be applied in circumstances where, as I have said, the evidence is of an oral character. The present case does not fall within that category of case.
27. It is common ground that the most significant part of the accommodation claim cannot be advanced without expert evidence. There was some debate at the Bar as to whether the claim for the costs of adaptation could be maintained without expert evidence, but that is in one sense peripheral to the main issue. The claim, therefore, logically and analytically falls into a different category to the employment claim, and the Master, in my view quite rightly, said that an employment consultant expert was not required. The claimant can advance this lady's loss of earnings without such an expert, which she cannot in relation to her accommodation claim under Roberts v Johnstone.
28. Looking at this case more broadly, two issues arise here. First, as to what exactly was the claimant's physical and psychological condition before the accident. Secondly, as to what would have happened but for the accident? I take Mr Greenbourne's point that the accommodation claim may not endure over the whole of the claimant's life as it were with a full life multiplier, but that is his fall-back position. His best case is that she would have sustained none of these losses if the events of November 2010 had not intervened. Even if Mr Greenbourne were forced to fall back onto his less ambitious case, this expert evidence would still be reasonably required.
29. For all these reasons, this appeal is allowed.