H. v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 21 March 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0321-8 |
| Docket Number | 91/0292 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 March 1991 |
[1991] EWCA Civ J0321-8
The Master of the Rolls
(Lord Donaldson)
Lord Justice Woolf
Lord Justice Mann
91/0292
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE HUTCHISON)
Royal Courts of Justice
MR. HUGH CARLISLE Q.C. and MR. ROBERT JAY (instructed by the Treasury Solicitor) appeared for the Appellant (Defendant).
MR. STEPHEN SEDLEY Q.C. and MR. MATTHIAS KELLY (instructed by Messrs. Leigh Day & Co.) appeared for the Respondent (Plaintiff).
This is an appeal against an order by Hutchison J. that the plaintiff's claim for damages for personal injuries be tried by a jury rather than by a judge alone.
In order that citizens be not deterred from seeking access to justice through the courts, it is occasionally necessary to protect them from the consequences of public scrutiny of evidence, and in particular medical evidence, of a nature that such scrutiny would prove not only embarrassing, but positively damaging to them. This protection can be achieved in a number of ways. Which method is chosen depends upon the facts of each individual case. Since, in the instant case, the nature of the plaintiff's injury is the foundation of his claim to trial by jury, whilst his personal identity is irrelevant, and the issue is of general public importance, the appropriate course is to refer to those injuries to such extent as is necessary, but to prohibit the naming or other identification of the plaintiff in the context of any report of this case. Accordingly we so ordered at the hearing of this appeal.
The plaintiff was a fit young man of 27 serving as a regular soldier when he consulted the Army Medical Service concerning a problem which was diagnosed as Perone's disease. This is a disease, congenital in origin, whose symptom is that there is a curvature of the penis which can render sexual intercourse difficult. He agreed to undergo a special test which involves injecting the penis with a saline solution in order to ascertain the extent of the abnormality. The advice which he then received was that the curvature was not of such a degree that any further treatment should be undertaken at least at that stage.
Shortly afterwards a blister developed at the site of the injection and he became ill. He was re-admitted to hospital and tests revealed that the penis had become infected. He was advised to undergo an operation for a skin graft at the site of the blister and accepted this advice. Whilst he was anaesthetised it apparently became clear that not only was it impossible to do the skin graft, but that there was no alternative to amputating the major part of the penis. Whatever the general nature of the consent which he gave to the operation, the fact appears to be that he went into the theatre expecting to undergo a skin graft but when he recovered from the anaesthetic found that he had undergone a penectomy.
It needs little imagination to appreciate the psychological trauma of such a revelation. The plaintiff made a genuine attempt to commit suicide, he could not continue in his chosen occupation as a regular soldier, he has undoubtedly suffered personality changes, he now has a phobia of coming into contact with the other sex and he lives in social seclusion.
Liability is admitted and the only issue is as to damages.
R.S.C. Order 33 Rule 4 governs the place and mode of trial and authorises the court to order that different issues be tried separately and in different places and by different modes of trial.
Order 33 Rule 5(1), which is concerned with trial by jury, provides as follows:
"The provisions of rule 4(1) and (2) are, as respects any action to be tried in the Queen's Bench Division and as respects any question of fact arising in such an action, subject to the provisions of section 69 of the Act, but an application for trial with a jury under that section (the time for making which is, under that section, to be limited by rules of Court), must be made before the place and mode of the trial is fixed under rule 4."
Section 69 of the Supreme Court Act 1981 is in the following terms:
"(1) Where, on the application of any party to an action to be tried in the Queen's Bench Division, the court is satisfied that there is in issue—
(a) a charge of fraud against that party; or
(b) a claim in respect of libel, slander, malicious prosecution or false imprisonment; or
(c) any question or issue of a kind prescribed for the purposes of this paragraph,
the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury."
(2) An application under subsection (1) must be made not later than such time before the trial as may be prescribed.
(3) An action to be tried in the Queen's Bench Division which does not by virtue of subsection (1) fall to be tried with a jury shall be tried without a jury unless the court in its discretion orders it to be tried with a jury.
Subsections (4) and (5) are immaterial for present purposes
The 1981 Act repealed section 6 of the Administration of Justice (Miscellaneous Provisions) Act 1933, which was the predecessor of section 69. Subsection (1) of that section provided that:
"(1) Subject as hereinafter provided, if, on the application of any party to an action to be tried in the King's Bench Division of the High Court made not later than such time before the trial as may be limited by rules of court, the court or a judge is satisfied that—
(a) a charge of fraud against that party; or
(b) a claim in respect of libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage,
is in issue, the action shall be ordered to be tried with a jury unless the court or judge is of opinion that the trial thereof requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury; but, save as aforesaid, any action to be tried in that Division may, in the discretion of the Court or a judge, be ordered to be tried either with or without a jury:
Provided that the provisions of this section shall be without prejudice to the power of the Court or a judge to order, in accordance with rules of court, that different questions of fact arising in any action be tried by different modes of trial, and where any such order is made the provisions of this section requiring trial with a jury in certain cases shall have effect only as respects questions relating to any such charge or claim as aforesaid."
The leading case on what was the appropriate mode of trial in personal injury actions when the 1933 Act was in force is Ward v. James [1966] 1 Q.B. 273 in which Lord Denning M.R. gave the only judgment, with which a formidable court consisting of Sellers, Pearson, Davies and Diplock L.JJ. agreed. Lord Denning recorded that until 1854 all civil cases in the courts of common law had been tried by juries. Indeed there was no other mode of trial available. However since then the use of juries had declined and in 1965 they were involved in only two per cent of civil cases. He explained that damages for pain and suffering and loss of the amenities of life in personal injury cases could never be truly compensatory and that conventional scales of awards had evolved. The unsuitability of juries for determining such awards stemmed from the practical difficulty of informing them of the...
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