Hall v Avon Area Health Authority (Teaching)

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE STEPHENSON,LORD JUSTICE WALLER,LORD JUSTICE CUMMING-BRUCE
Judgment Date04 Dec 1979
Judgment citation (vLex)[1979] EWCA Civ J1204-9
Docket Number1978 3 No. 5151

[1979] EWCA Civ J1204-9

In The Supreme Court of Judicature

Court of Appeal (Civil Division)

(On Appeal from Mr. Justice Kenneth Jones)

Before:

Lord Justice Stephenson

Lord Justice Waller and

Lord Justice Cumming-Bruce

1978 3 No. 5151
Betty Hall
Plaintiff
(Respondent)
and
Avon Area Health Authority (Teaching)
Defendants
(Appellants)

Mr. C. S. RAWLINS (instructed by Messrs. Gouldens, Agents for Messrs. Bevan Hancock & Co., Bristol) appeared on behalf of the Appellants.

Mr. E. BAILEY (instructed by Messrs. Gillhams) appeared on behalf of the Respondent.

LORD JUSTICE STEPHENSON
1

The plaintiff, Mrs. Hall, in this action has refused to undergo a medical examination by an orthopaedic surgeon nominated by the defendants, the Avon Area Health Authority, unless the examination is conducted in the presence of a doctor nominated by her or her solicitors.

2

Mr. Justice Kenneth Jones held on 27th July 1979 that she was entitled to refuse on that condition. He allowed her appeal from an order of the deputy district registrar staying her action, or intending to stay her action, until she submitted to that examination without her doctor being present, and he subjected the stay to the proviso that (among other things) the examination should take place in the presence of a surgeon nominated by her. Was the judge plainly wrong?

3

Mr. Rawlins has submitted for the defendants that he was and that we should remove the condition. Mr. Bailey has submitted for the plaintiff that the judge was right and we should not interfere with his exercise of his discretion.

4

I am bound to say that my first reaction to this application for leave to appeal was hostile. Why should not the plaintiff have her doctor or surgeon there? Why should she be prevented from pursuing her claim unless she agreed to be examined without him? What injustice could possibly result from her insisting on his presence? And even if I might have reached a different decision, how could it be said that Mr. Justice Jones was not entitled to exercise his discretion as he did? But Mr. Rawlins has persuaded me, in spite of my reluctance to reverse an exercise of discretion by this learned judge and of all that Mr. Bailey has forcibly urged in support of his order, that we ought to give leave to appeal and to allow the appeal.

5

The plaintiff's case is an uncomplicated one, as appears from paragraphs 1 and 2 of her statement of claim, which was served on 15th September 1978: "At all material times the plaintiff was employed by the defendants as a domesticat their premises Hortham Hospital, Almonds bury, Bristol of which premises the defendants were at all relevant times the occupiers and on which the plaintiff, during the course of her said employment, was a visitor. On 8th November 1977 at about 8.05 a.m. the plaintiff was walking along the driveway leading towards Avon Ward when she was caused to slip and fall to the ground by a patch of mud and wet leaves which were lying on the said driveway". Then it was alleged that her fall was caused by the negligence and/or breach of statutory duty of the defendants and it was alleged in paragraph 4 that, by reason of the defendants' negligence and/or breach of duty as employer or occupier, the plaintiff sustained personal injury and suffered loss and damage, the only particulars given being "(a) Shock and severe pain. (b) Major rupture of the rotator cuff of the right shoulder". The paragraph goes on, "The plaintiff was aged 52 at the time of the accident. Details of her injuries and treatment there for appear in a medical report dated 26th June 1978 by Mr. W. G. J. Hampson. The plaintiff will have a permanent marked limitation of movement in her right shoulder and this may well prevent her from continuing her employment as a domestic and will restrict her ability to obtain other employment"

6

The report referred to in that paragraph was, by a mistake, not in fact delivered with the statement of claim to the defendants' solicitors and, of course, it was a report of an examination made not in the presence of any representative, medical or otherwise, of the defendants. Mr. Hampson, who was the author of that report, unfortunately died before these proceedings, came on for trial. His death was not immediately known to the plaintiff's solicitors.

7

The defence delivered on 8th November 1978 is in ordinary form denying liability and damage and alleging contributory negligence on the part of the plaintiff.

8

On 4th January 1979 Master Lubbock made an order for directions and by the first paragraph of that order he ordered that "The plaintiff and thedefendant do mutually disclose medical reports within 28 days after setting down. Such reports be agreed if possible. Unless such reports are agreed, the parties be at liberty to call medical witnesses limited to one witness for each party whose report has been so disclosed".

9

That order for mutual disclosure was in accordance with the practice laid down in Rules of the Supreme Court, Order 38, rule 37. That provides: "(l) Where in an action for personal injuries an application is made under rule 36(1)" - which I need not read - "in respect of oral expert evidence relating to medical matters, then, unless the court considers that there is sufficient reason for not doing so, it shall direct that the substance of the evidence be disclosed in the form of a written report or reports to such other parties and within such period as the court may specify".

10

Orders made under that rule provide now for the mutual exchange of medical reports contemporaneously on the principle of reciprocity, which is recognised (happily) now - not so in early days; recognised, for instance, in Order 38, rule 38, and in Order 25, rule 6, sub-rule (l). In the Annual Practice for 1979, at pages 441 and 622, will be found valuable notes, 25/6/2 and 38/35/5) referring to the authorities which establish the principle and explaining the machinery of simultaneous exchange and its reason.

11

On 19th January 1979 (well before the end of the period laid down in the order for directions, to which I have referred) the defendants' solicitors wrote to the plaintiff's solicitors: "As you know, we do not yet have a medical report on your client. We would like to instruct Mr. M. P. McCormack, Orthopaedic Surgeon of 18, Richmond Hill, Bristol 8 to examine your client and prepare a report on her for the purpose of defending the action. Would you please ascertain whether your client has any personal objections to Mr. McCormack and, if she has not, please confirm this and we will instruct him".

12

To that the plaintiff's solicitors replied on 25th January: "We confirm that facilities will be available to you to have our client examined by Mr. McCormack on the usual terms, namely: 1. A doctor nominated by us is present. 2. You agree to meet the fees of the doctor nominated by us. 3- You agree to reimburse our client her reasonable expenses including any loss of wages for attending the medical examination. 4' You agree to let us have a sight of your doctor's report. We note that you are waiting to hear from counsel and we await hearing from you as soon as possible".

13

So there the plaintiff's solicitors are putting forward four (what they call) "usual terms", which are conditions precedent to their client's being examined by Mr. McCormack, the orthopaedic surgeon nominated by the defendants, to whom they, by their silence, have no personal objections. It is admitted, and the learned judge so found, that the request contained in the defendants' solicitors' letter of 19th January was a reasonable request.

14

Thereafter, the defendants' solicitors took out a summons and the deputy district registrar made an order, neither of which I need read.

15

On 26th June the plaintiff appealed against the registrar's order as it was intended to be made, to stay the plaintiff's action unless she submitted to an examination by Mr. McCormank without the presence of a doctor nominated by her. On 26th June, apparently, the learned judge had his first hearing of the plaintiff's appeal. The hearing dealt mainly with the question of reciprocity in making any report by Mr. McCormack available to the plaintiff and any report by a doctor nominated by the plaintiff available to the defendants. But on 27th July, when the hearing was resumed, that matter had been resolved and the sole issue was the first condition which the plaintiff solicitors were seeking to impose on the examination as a "usual term"

16

We have the advantage of a full note of the learned judge's judgment, approved by him, and that note begins with these two sentences: "This matter can be taken shortly. The defendants wish to have the plaintiff examined bytheir own doctor. The plaintiff started by agreeing or consenting to such examination only on certain conditions, these conditions being" - and then he sets out the four conditions. In a note appended to the agreed note of his judgment, on 5th September 1979; the judge added: "According to my recollection "I the only issue here was whether condition 1" (the first "usual term") "was reasonable. I decided that it was. On that basis the defendants agreed that conditions 3 and 4 were reasonable. The plaintiff at the outset abandoned condition 2". The plaintiff's solicitors had given an undertaking in accordance with all the cases which were cited to us, ending with Starr v. National Coal Board, reported in 1977 1 AER 243 and 1977 1 WLR 63. The reasonableness of condition 1 was the only outstanding issue between the parties.

17

The learned judge referred to Start's case and quoted from it what Lord Justice Scarman had said at page 249 at: "So what is the principle of the matter to be gleaned from those cases? In my judgment the court can order a stay if, in the words of Lord Denning MR in Edmeades' case, 'the conduct of the plaintiff in refusing a reasonable request for...

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3 cases
  • Whitehead v Avon County Council
    • United Kingdom
    • Court of Appeal
    • 10 February 1997
    ...to the relevant authorities: Starr v National Coal BoardWLR ((1977) 1 WLR 63) and Hall v Avon Area Health Authority (Teaching)WLR((1980) 1 WLR 481) and had concluded that although it might well be considered reasonable for Mrs Whitehead, clearly a nervous plaintiff, to ask to be allowed to ......
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    • Queen's Bench Division (Northern Ireland)
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  • Trautvetter v Mcdonald and
    • New Zealand
    • High Court
    • 8 August 2008
    ...compensation legislation. [9] Mr Dalkie referred to the judgment of Stephenson LJ in Hall v Avon Area Health Authority (Teaching) [1980] 1 All ER 516. In that case, the plaintiff refused to undergo a medical examination by an orthopaedic surgeon nominated by the defendants unless the examin......

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