Huntley v Simmonds
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Laws,Lord Justice Etherton |
| Judgment Date | 09 February 2010 |
| Neutral Citation | [2010] EWCA Civ 54 |
| Docket Number | Case No: B3/2009/0665 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 February 2010 |
[2010] EWCA Civ 54
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEE'N'S BENCH DIVISION
Mr Justice Underhill
Before: Lord Justice Waller
Vice-president of the Court of Appeal, Civil Division
Lord Justice Laws
and
Lord Justice Etherton
Case No: B3/2009/0665
David Wilby QC and Paul Dean (instructed by Messrs Blake Lapthorn) for the Appellant
Ronald Walker QC and Nigel Lewers (instructed by Messrs Irwin Mitchell) for the Respondent
Hearing date : 16 th December 2009
Lord Justice Waller :
On 20 th June 2004 the appellant, when he was 22, was severely brain damaged in a car accident. The respondent did not dispute liability. Underhill J handed down a judgment assessing damages on 13 th February 2009. By that judgment he indicated in relation to the award for Future Care (by far the most significant aspect of the award) that he would be prepared to make a Periodical Payment Order in part; his refusal to make such an order for all future care rested on uncertainties which he had identified in the course of his judgment.
The judg'e's award was considerably less than that for which the appellant and his advisers had been contending, and whereas the advice given to the appellant on the basis of the sums claimed was that the court should be asked to make a PPO, on the hand down of the judgment the judge accepted that further advice should be sought. That advice was that on the assessment made by the judge the appellant should now seek a lump sum award. The respondent had at all times argued for a lump sum award, and in the result the judge was persuaded to make a lump sum award.
This is an appeal against both the judg'e's main judgment and his ruling that he would make a lump sum award dated 16th June 2009 (of which we have a note approved by the judge). The appeal against the judg'e's ruling on 16th June 2009 is of course contingent on the appeal resulting in the much higher award contended for by the appellant, and thus the focus of any argument is on the main judgment.
Mr David Wilby QC, supported by his junior Mr Paul Dean, in the grounds of appeal supported by a main revised skeleton argument and by a Supplementary Skeleton filed shortly before the hearing of the appeal, and in his oral submissions, devoted most of his energy to an attack on the judg'e's assessment in relation to future care. Mr Walker QC for the respondent also devoted most of his answers to this aspect.
Future Care
The appellan't's case was that (a) the appellant needed 24 hour care in essence to control his behaviour made seriously worse as a result of his injury, and (b) that there were no prospects of any improvement in his cognitive or behavioural habits which would allow less than 24 hours of care in the future.
At the trial Mr Wilb'y's case that 24 hour care was needed was supported by his care expert Ms Jo Clark-Wilson. She did not support 24 hour care in her first report but in her second report and in her evidence at the trial she supported that need. The need for 24 hour care was also supported by Dr Bird, a neuro-psychiatrist, in his oral evidence.
The case that there were no prospects of improvement in behaviour was supported by a Joint Statement of Professor Beaumont and Dr Leng (expert neuro-psychologists acting for the appellant and respondent respectively). It was also supported by Dr Bir'd's second report and his oral evidence and, albeit less dogmatically, by Dr Gross' oral evidence.
The main thrust of Mr Wilb'y's argument on the appeal was (a) that the judge was not entitled to disregard the Joint Statement of the neuropsychologists on the appellan't's prospects of improvement, and (b) that having rejected the evidence of the defendan't's care expert, Mr Blackshaw, as inadequately based on the medical evidence, ignored the recommendations of Ms Clarke-Wilson and made his own arbitrary assessment unsupported by any expert evidence.
In my view Mr Wilb'y's criticisms of the judge are unfounded and in some respects show a misunderstanding of the status of experts' evidence and, in particular, joint statements. The evidence of experts is important evidence but it is nevertheless only evidence which the judge must assess with all other evidence. Ultimately issues of fact and assessment are for the judge. Of course if there is no evidence to contradict the evidence of experts it will need very good reason for the judge not to accept it and he must not take on the role of expert so as to, in effect, give evidence himself. So far as Joint Statements are concerned parties can agree the evidence but (as happened in this case) it can be agreed that the joint statements can be put in evidence without the need to call the two experts simply because they do not disagree; but either party is entitled to make clear that the opinion expressed in the joint statement is simply evidence that must be assessed as part of all the evidence.
Much the same point can be made in relation to the evidence of Ms Clark-Wilson and the evidence of Mr Blackshaw. The views of these two experts were at different ends of a spectrum. Mr Blacksha'w's evidence was to the effect that the claimant needed only a limited amount of care; Ms Clark-Wilso'n's view was that the claimant needed 24 hour care, not it should be said because he could not do things for himself but because he needed, in effect, a guardian; his behaviour was likely to be such that it was necessary to have someone constantly with him to protect third parties and protect the claimant from himself.
The judge did not accept either view. He thus had to make his own assessment of what care would be needed. The way he did that is criticised by Mr Wilby, who would suggest the judge fell foul of the rule which holds the judge should not become the expert, and involved the judge plucking figures from the air. I will have to examine that criticism with some care. The real question is whether there was evidence in the case which entitled the judge to form the view he did as to the care regime which would be needed by the claimant in the future, and whether his calculations were based on evidence.
The joint statements
I will deal with this criticism first. In relation to the joint statement of two neuropsychologists, that statement was heavily relied on by Mr Wilby before the judge. Indeed he made the point to the judge he sought to make on the appeal that it was a joint statement from the relevant experts which bound the judge as to the conclusion he should reach. The judge did not accept that submission; he appreciated the evidence was important; his view was, however, that it was only part of the evidence before him. All this appears from paragraph 54 of the judgment where the judge said this:—
“The first point that Mr Wilby made by way of response to the case advanced by Mr Walker was that the principally relevant specialist expertise in this case was not neuropsychiatric or neurological—that is, the specialities of Dr Upton and Dr Foster—but neuropsychological, and thus that the issue of any further possible improvement was effectively concluded by the agreed terms of the joint statement of the neuropsychological experts, Professor Beaumont and Dr Leng. I do not agree. In the first place, while I acknowledge that the neuropsychological opinions are of great importance, I was not persuaded that the issue in question was one on which a neurologist or neuropsychiatrist was unable to express a valid opinion. Clinicians do not operate in impermeable boxes. Although Dr Upton is a neuropsychiatrist by speciality, his particular clinical expertise is in the care and treatment in the community of patients with brain damage; and he told me that the nature of his practice meant that he had very considerable experience of the kinds of regime which he believed should have been implemented in the present case but had not been. Thus the agreed evidence of the neuropsychologists represents only part of the relevant evidence before me. In circumstances where there was clearly a dispute on this question, it is perhaps less than ideal that I did not hear live evidence from Professor Beaumont and Dr Leng. A joint statement is always a helpful document, but it is in the nature of things something of a summary.”
It is right also to quote the footnote to the last sentence:—
“In his written closing submissions Mr Wilby said that if I thought it necessary there should be an adjournment to allow Dr Leng and Professor Beaumont to be called. He did not repeat this suggestion in his oral submissions, but in any event I do not believe that it would have been proportionate or in the interests of justice to take this course. I was able to obtain a reasonably good understanding of their views from their reports, which were before the Court, and their joint statement, all of which I have read carefully.”
It is important to stress that those representing the defendant had made clear that the Joint Statement was not “agreed” evidence. It thus fell to be treated as part of the evidence as the judge said. It was a matter for those representing the claimant to decide whether the Joint Statement should become evidence on that basis or whether they wanted the two experts called. They took a perfectly understandable decision that the Joint Statement should go in and the experts need not be...
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