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Boyle v The Commissioner of Police for the Metropolis, Court of Appeal, 5 November 2013

16 December 2013

Issues

Road traffic – expert evidence – Jackson reforms

The facts
On the 26 January 2008 the claimant Jonathan Boyle had a catastrophic accident when for no apparent reason he left or fell from the pavement and was struck by a car coming along the road behind him driven by Alf Currey, an acting sergeant of the Metropolitan Police. Mr Currey was responding to a call but in no particular hurry. The matter was listed for trial on liability only. The trial judge found that he was driving over the speed limit namely between 32-35 miles per hour in a restricted area. The trial judge found that was negligent and that a safe speed would have been 28 miles per hour. The claimant had no memory of the event and was paraplegic. His case was that Mr Currey should have been driving nearer the middle of the road or should have swerved into the middle of the road when he saw Mr Boyle thus avoiding the impact. The trial judge found that Mr Currey was not negligent in failing to drive nearer the middle of the road and that there was no evidence to suggest that if he had braked and swerved at the time he saw Mr Boyle the accident would not have occurred. For that to have happened the driving speed would have to have been in the region of 20 miles per hour. He also held that there was no evidence that if the impact speed had been 28 miles per hour rather than 33 miles per hour Mr Boyle’s injuries would have been less extensive. On the first morning of the trial the claimant’s counsel had applied to serve a three page report with over 70 pages of statistical attachments from the medical expert on spinal injuries. The judge rejected the application on the ground that it was far too late for this expert evidence to be served and also on the ground that it did not in its current form assist the court internally extent to which the injuries would have been less extensive if the impact speed had been less. The claimant appealed to the Court of Appeal. The appeal was made on three grounds namely:

  1. that the judge had misunderstood the expert evidence in relation to Mr Currey’s failure to swerve or brake
  2. that the judge had been wrong to conflate the issue of permission to serve the report on the issue of its utility; and
  3. that even if there was doubt as to the utility of the report in the form that it was presented, the right course was that the whole question of causation should have deferred and to the subsequent determination of the quantum.

The decision
As to the first ground the judge had not misunderstood the agreed views of the experts who had based their views on Mr Currey’s ability to brake and swerve once he had seen the claimant. The judge’s findings of fact on that matter could not be faulted. As to the report, it has been served on the Friday of the week before the trial was due to begin which was late. The judge had a discretion and whether his decision was a case management decision or not did not seem to matter very greatly. He considered the matter carefully, following the notes to Part 35 in the White Book to the effect that a late application to call expert evidence was effectively an application for relief from the sanction of being unable to call expert evidence which had not previously been served. He considered all the matters he was required to consider under the then version of CPR 3.9 and there was nothing in his assessment that was wrong in any way. There was not before the judge, or at the time of the hearing before the Court of Appeal, any explanation as to how the matter came to be ignored or overlooked. The judge had also been right as to the form of the report. There was no purpose in serving a report which did not assist the judge. Once the judge had decided rightly in the view of the Court of Appeal that the expert evidence in the form presented was not useful it was inevitable that he should decide that the evidence should not be adduced at all. The matter came before the judge on liability. Once it had been decided that liability was to be determined first, causation had to be addressed. That had been the purpose of the Master ordering that the parties would have permission to adduce expert evidence in the field of spinal surgery. Any trial merely for questions of breach of duty and safe speed would have been contrary to the Master’s order and would have been conducted in a vacuum without either counsel or the judge having any idea of the consequences of any particular finding. The judge had been right not to contemplate any such outcome so late in the day.

There was a further consideration. The courts were becoming less and less tolerant of failures to serve expert evidence in accordance with previous orders of the court as they were becoming less and less tolerant of other breaches of court orders. It was not merely prejudice to the parties that mattered but prejudice to the system of justice as a whole. This had been emphasised over and again in subsequent decisions including Fred Perry Holdings v Brands Plaza Trading Limited. The court was reluctant to see a catastrophically injured claimant go uncompensated but there had to be a clear message that prolonged and persistent failures to comply with court orders might well result in cases being dismissed.

Appeal dismissed.

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