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Hague v Rexam Glass Ltd, Court of Appeal, 5 April 2006

26 April 2006
The issues

HAVS -Vibration White Finger -VWF -Entitlement of Judge to decide medical matters without the assistance of an expert.

The facts

The Claimant brought an action alleging that he had contracted HAVS when working for the Defendant. He had a report from a Consultant Vascular Surgeon, Mr Cuschieri to support his case. That report did not spell out the classic symptoms of HAVS but made it clear that it was one of those conditions where the description supplied by the patient was the only basis on which a diagnosis could be made. The Defendant also had a Consultant Vascular Surgeon’s report. That report was from Professor Charlesworth. Professor Charlesworth concluded that on a balance of probability, it was more likely that the Claimant’s symptoms were a side effect of the medication he was taking rather than VWF or HAVS.

A joint statement was obtained from the two surgeons. Directions were provided for permission for the experts to give oral evidence. The case was listed for 5 days beginning on the 11th April 2005. The trial programme allowed for the medical evidence to be called on the Friday of that week.

When the trial began the Judge stated his view that in these cases the Judge was in as good a position as the doctor, if not better, with regard to the nature of the Claimant’s condition because the vast majority of vascular surgeons worked on the basis that when a patient was referred to them by a GP there was something wrong with the patient and what had emerged in HAVS work was that there was a lot of exaggeration, malingering and lying which vascular surgeons were not trained for. Consequently the Judge took the view that the evidence in chief was extremely important. He queried whether he needed to hear the doctors. The Claimant would be called first to give his evidence on exposure and symptomology. There was a consensus between the Judge and the Claimant’s Counsel that the question of whether or not the medical experts needed to be called could be reviewed once the Claimant had given his evidence. After the Claimant’s evidence the Judge took the strong view that what the Claimant was describing was not HAVS, making use of his experience that he had gained in other cases. At the end of the evidence the Judge gave a Judgment in favour of the Defendant. The Claimant’s Counsel did not revert to the question of whether medical evidence should be called. In his Judgment the Judge took the view that he was satisfied beyond the civil standard, that this Claimant was not suffering from HAVS and that his claim should be dismissed.

The Claimant appealed.

The decision

1. The Claimant appealed on the basis that the Judge had wrongly determined to hear and decide the preliminary issue without the necessary oral evidence and because he had imported expert evidence from previous cases without giving the experts in this case the opportunity of dealing with that evidence. The Claimant waned to bring before the Court of Appeal further correspondence between the solicitors and Mr Cuschieri putting before him the transcript of the Claimant’s evidence and obtaining his response.

2. The main thrust of the correspondence was to the effect that because the Claimant’s evidence of his symptoms as given in evidence were at times contradictory and because his opinion was based on what he had been told in February 2002 he did not feel the need to change his opinion, and that HAVS sensori-neural symptoms could exist either in isolation or in association with vascular symptoms.

3. The relevant principles as to the question as to whether fresh evidence should be admitted in the Court of Appeal was contained in Ladd v Marshall. They were that firstly the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence had to be such that if given it would have had an important influence on the result of the case, though it need not be decisive; third, the evidence must be apparently credible though not incontrovertible.

4. Although the Court was concerned at the Judge’s robust approach it was unfair to say that the Judge had “prevented” relevant evidence given. He had suggested that oral evidence might not be necessary and could not be criticised for using his experience in previous cases as long as it was plain to the parties what experience he was using and as long as they had an opportunity to challenge what they thought might be misconceptions. No request was put in evidence to challenge the Judge’s views. Although expert evidence had been put in, and the Court had directed that it should be given orally, it was always open to the Court to reconsider that question and that was what the Judge had proposed as a possibility. He had accepted that he would only finally rule once the Claimant had given evidence. The Claimant’s Counsel took the decision not to request the Judge to allow oral evidence to be given and sought to argue that the Judge should approach the matter by reference to the description given to Mr Cuschieri by the Claimant rather than the Claimant’s evidence. That approach the Judge was entitled to reject and did reject. As a general proposition it was wrong for a Judge to take the view that he could decide medical matters without the assistance of experts if one party or the other wished to call that evidence. But this was not what had happened in this case. There had been no submission that oral evidence from the experts would assist the Judge and there was no prevention of such evidence being given. On the appeal the attempt was in reality to put in fresh evidence of a case which could have been made at trial but was not. In effect the correspondence with Mr Cuschieri amounted to a new case that a patient might suffer quite independently from vascular problems in its reliance on sensori-neural problems. It was not a case which Mr Cuschieri has supported in his original report or even hinted at in the joint report. There was no reason therefore why it should now be admitted on this appeal. The new case was weak in the extreme.

Appeal dismissed

focus on...

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