Garrett v Halton Borough Council; Myatt v National Coal Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Walker |
| Judgment Date | 02 March 2006 |
| Neutral Citation | [2006] EWHC 351 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: 04/TLQ/0189 |
| Date | 02 March 2006 |
[2006] EWHC 351 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Walker
Case No: 04/TLQ/0189
The Claimant appeared in person
Mr William Evans and Mr Ali R. Sinai (instructed by Vizards Wyeth) for the Defendant
Hearing dates for trial of liability: 6, 7, 8, 9 December 2004, 4, 5, 10, 17, 18, 26, 27 October 2005, 14, 17, 25 November 2005
Judgment Approved
Table of Contents:
| INTRODUCTION | 2 |
| HISTORY OF THE PROCEEDINGS | 3 |
| REVIEW OF THE MATERIAL LODGED BY THE PARTIES. | 25 |
| EXPERTS AND IMPARTIALITY | 25 |
| (A) PRESENCE OR ABSENCE OF DU IN THE CLAIMANT | 26 |
| OPINIONS EXPRESSED BY DR DURAKOVIC | 26 |
| OPINIONS OF PROFESSOR SCHMITZ-FEUERHAKE | 29 |
| INFERENCE FROM THE CLAIMANT'S MEDICAL CONDITION | 30 |
| (B) PRESENCE OR ABSENCE OF DU AT THE CLAIMANT'S WORKPLACE | 32 |
| (C) THE USE OF DU BY WESTLAND | 33 |
| (D) EXPOSURE TO METAL DUST IN THE CLAIMANT'S WORK | 33 |
| (E) RES IPSA LOQUITUR | 34 |
| (F) APPLICATION OF REGULATIONS AND THE COMMON LAW TO THE EVIDENCE | 34 |
| (G) THE CLAIMANT'S ILLNESS | 36 |
| (H) CAUSATION | 36 |
| (I) THE EFFECT OF THE PREVIOUS CLAIM | 37 |
| CONCLUSION | 39 |
Introduction
The defendant, Honeywell Normalair-Garrett Limited, was formerly known as Normalair-Garrett Limited. It changed its name after Honeywell Inc. acquired a controlling interest in 1999.
The Claimant, Mr Richard David, was born on 1 September 1954. He was thus 30 years old on 18 February 1985 when he started work assembling components for defence equipment at the defendant's factory in Yeovil. He moved to the repairs department in October 1985, and from there to the coil winding shop in January 1989. His contract of employment came to an end on 31 January 1997.
During the period of his employment the claimant's medical condition deteriorated, to the point where in July 1995 he ceased work all together. On 16 December 1998 he issued proceedings against the defendant claiming that his medical symptoms at that time, which I shall call "the 1998 Symptoms", were caused when the defendant exposed him to substances hazardous to health, in particular solvents. The claimant and defendant compromised those proceedings in April 2000 by an agreement ("the Compromise Agreement") under which the defendant, without admitting breach of duty, liability or causation, paid the claimant £10,000 and the claimant agreed that the defendant "be discharged from all further liability arising out of or in any way connected with this claim." The Compromise Agreement was embodied in a court order dated 7 April 2000 ("the 2000 Order").
The proceedings now before the court are fresh proceedings begun by a claim form issued on 5 February 2003. In amended particulars of claim dated 30 September 2004 it is said that during the course of his employment the claimant was exposed to depleted uranium (sometimes referred to as "DU") in breach of the defendant's statutory and common law duty of care. As a result it is said that, as at 30 September 2004, he has suffered numerous injuries, which I shall call "the 2004 Injuries", along with loss and expenses. Among the 2004 Injuries pleaded in the amended particulars of claim is a diagnosis of the claimant as suffering from Gitelman's syndrome.
The defendant in its re-amended defence dated 30 June 2005 admits that the claimant suffers from Gitelman's syndrome. It does not admit any others of the 2004 Injuries. The re-amended defence denies that the defendant exposed the claimant to depleted uranium, and if there was such exposure denies any breach of statutory or common law duty. If there was a breach of duty, it denies this caused the 2004 Injuries. It relies on each of the Compromise Agreement and the 2000 Order as barring the claim in various ways. The re-amended defence also asserts that the passage of time before issue of the claim form means that the claim is statute barred, but this is no longer relied upon by the defendant.
No case on quantum has been put forward by the claimant, nor has he put forward any evidence which would enable an assessment of damages. I accordingly ordered on 22 November 2005 that in the first instance there should be a trial of issues of liability only. That trial has now taken place before me. Both parties have treated it as concerned with all issues other than quantum. This judgment sets out my findings on those issues. As the trial has taken an unusual course, I shall first describe the history of the proceedings.
History of the Proceedings
The defendant has been represented by solicitors, Messers Vizards Wyeth and junior counsel, Mr William Evans. For the latter part of the trial Mr Evans was assisted by a second junior counsel Mr Sinai. The claimant initially acted in person. He secured legal representation prior to the drafting of the amended particulars of claim. At a time when it was expected —at least by the defendant and by the court —that the claimant would continue to be legally represented, the case was set down for trial with an estimate of ten days.
Unfortunately, shortly before the pre-trial review on 22 November 2004, the claimant lost his legal representation. He had just over a fortnight in which to prepare a trial involving complex issues of fact, expert evidence and law. Preliminary matters and the claimant's opening occupied the first day and most of the second day of the trial, 6 and 7 December 2004. On the afternoon of the second day evidence was taken from one of the claimant's witnesses of fact, Mr Raymond Bristow. At the start of the third day, Wednesday 8 December, the claimant told me that he wished to add to his amended particulars of claim and to supplement his expert evidence, and Mr Evans told me that the defendant objected to these proposals. I directed that these proposals be set out in writing for consideration.
In the meantime, the parties were content to proceed with evidence, and the claimant gave his evidence in chief by reference to his written statements. He was then cross-examined until the short adjournment. The cross-examination proceeded no further, however. The reason was that the afternoon was taken up with argument about the material which had now been reduced to writing. On the proposed additions to the amended particulars of claim the defendant agreed that the things the claimant wished to say did not require any permission from the court. However, on the proposals concerning expert evidence the parties were unable to reach an agreement. Further submissions were heard on the fourth day, Thursday 9 December, with the claimant applying for an adjournment to enable him to put his proposed expert material in order.
By this stage I had very serious concerns about the timetable, even if the claimant's application were refused. It seemed to me that we were likely to have to adjourn in any event, for it would not be possible to complete the evidence in the time available in the remainder of the legal term. An advantage of adjourning immediately rather than at the end of the legal term was that there would be active case management so that arrangements were made for consideration of proposed additional evidence in orderly way. Mr Evans took instructions. After doing so he told me that the result was great unhappiness on the defendant's side. Great efforts, he said, had been made on the defendant's side to achieve a hearing and enormous latitude had been given to the claimant. The allegation against the defendant was very serious, and through the claimant it had been given considerable publicity. The defendant was anxious to clear its name as soon as possible. The situation was not of its making, and the defendant, suggested Mr Evans, had the right that it be brought to a conclusion as soon as practicable. Having said that, Mr Evans conceded that if the trial continued at the current pace it could not be said that it would finish before the end of term. Accordingly his instructions were that if the court considered an adjournment inevitable, he would say no more in opposition. If that was the court's conclusion the adjournment ought to be immediate.
In those circumstances I adjourned the trial and made arrangements for a hearing to consider further directions on 17 December 2004. At that hearing among other things I made orders which required that all further evidence on which the claimant relied was to be served by 28 January 2005, and was to comply with the provisions of part 35 of CPR. I also directed that the defendant was to serve questions for one of the claimant's expert witnesses, Dr Durakovic by 12 January 2005, and that these questions were to be answered by 28 January 2005.
The matter then came back before me on 11 February 2005, on which date a case management conference was held. Certain matters were agreed; other matters however were more contentious, and it was clear that the proposed expert evidence which the claimant wished to rely upon, additional to that which had been prepared for the original trial, called for further re-thinking. I ordered that the claimant should have permission to rely upon certain additional statements, together with accompanying documents, and additional evidence from or relating to Mr Bristow. I also made orders for the disclosure of documents relating to the testing of the claimant's urine, and a statement describing instructions and information provided to him and action taken by him in relation to such testing. I then directed that any further material from the claimant must be served on the defendant's solicitor by 23 March and that the matter should come back before me on 8 April 2005.
At a case management conference on 8 April 2005 the claimant, who had...
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