Jackson v Marley Davenport Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE LONGMORE,LORD JUSTICE TUCKEY |
| Judgment Date | 09 September 2004 |
| Neutral Citation | [2004] EWCA Civ 1225 |
| Docket Number | B3/04/1854 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 September 2004 |
[2004] EWCA Civ 1225
Lord Justice Peter Gibson
Lord Justice Tuckey
Lord Justice Longmore
B3/04/1854
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE THE SHEFFIELD COUNTY COURT
(HIS HONOUR JUDGE HULL)
Royal Courts of Justice
Strand
London, WC2A 2LL
MR RICHARD MAXWELL QC (instructed by DLA, Sheffield, S1 1RZ) appeared on behalf of the Appellant
MR PATRICK FIELD QC (instructed by Messrs Irwin Mitchell, Sheffield, S1 2EL) Appeared on behalf of the Respondent
I will ask Lord Justice Longmore to give the first judgment.
This appeal raises the question whether, if an expert makes an early report to his client before he makes the report which is later disclosed in the litigation as being the evidence he intends to give at trial, the law requires that earlier report to be disclosed.
Marley Davenport Limited, the defendants in this action, are a specialist construction company, which at the relevant time was erecting a cooling tower in the Leuna Chemical Site, Mersburg, near Leipzig in Germany. They sent the claimant, Alan Jackson, and a number of their other employees to the chemical site for the purpose.
On 3 September 1999 the claimant's supervisor had instructed him to work in a concrete pond or sump, known as the Steam Turbo Set and Cooling Tower. Access down into, as I assume it must have been, the pond or sump was gained by a lightweight ladder provided by the defendants. The claimant asserts that the ladder was not tied or secured in any way and also that the means of access to the top of the ladder was obstructed by pallets on which various materials were strapped. He further asserts that, while attempting to gain access to the ladder, or while he was on the ladder, he lost his balance and fell backwards into the sump, sustaining severe injury to his head and spinal cord. Unfortunately he can remember nothing of the accident and in this action against his employers for breach of duty, he and his lawyers have sought leave to obtain expert assistance about the cause of the accident and the method in which he is likely to have sustained his injuries.
On 6 May 2003 an order was made that each party was permitted to appoint one engineering expert and, more relevantly to this appeal, one pathology expert to give written evidence with a provision for exchange of expert reports.
The claimant's solicitors then instructed Dr Guy Rutty, Professor of Forensic Pathology, as an expert witness in this case and asked him to answer certain questions and to prepare a report. It seems that Professor Rutty prepared a report for the purpose of a conference with lawyers on or about 6 April 2004. Thereafter he provided a further report, dated 19 June 2004, which has been served on the defendants and in which he referred to two letters of instruction. He identified other specified documents which had been forwarded to him for the purposes of writing his report. In his report he answered various questions including question numbered (1):
"What was the nature and extent of the injuries sustained by Mr Jackson?"
In the course of his answer he stated that there had been a dislocation of the cervical spine at the level of C6/7. He said, further, that there was a complete disc prolapse with spinal cord contusion. The seventh question he was asked was whether, from the pathology of the rupture, it was possible to tell anything about the force of the trauma and its direction. In the course of answering this question he said:
"I think an entirely reasonable scenario is that Mr Jackson was attempting to get onto the ladder at the top of the sump but during this process the ladder became unstable and twisted which could account for the clattering sound heard by the witnesses and also the final position of the ladder shown in the reconstruction. As the ladder pivoted around one of its legs, Mr Jackson went backwards and to the left hand side, striking his head during his passage on the cross beam and sustaining the neck injury and in the process losing his hard hat which came to rest again in the position shown within the reconstruction."
He then summarised his conclusions in the following way:
"Thus in summary, having now gained additional information in relation to this case, I am of the opinion that it is entirely possible that the claimant fell from the top of the sump in a backwards and slightly to the left direction probably whilst trying to get onto the ladder. During this process the ladder appears to have pivoted around one of its legs moving into the position shown within the reconstruction photographs. The claimant has gone backwards and to the left, possibly striking his head on the cross beam sustaining his neck injury and losing his hard hat in the process or sustaining the neck injury as he hit the floor."
The reference in this last passage to Professor Rutty having gained additional information in relation to the case indicated to the defendant's solicitors that Professor Rutty might have changed his approach to the case in the light of the additional information he had obtained, and might have expressed a somewhat different view originally from that which he was now expressing in his report of 18 June 2004 as served. They therefore made an application to the district judge. There appears to be some controversy as to what that application was. Mr Maxwell QC, for the defendants, has said in his skeleton that an application was made for disclosure of the earlier report, which was correctly presumed to exist, as well as for disclosure of the substance of the instructions given to Professor Rutty. A...
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...report was indeed privileged, and that that privilege had not been waived. He referred to the Court of Appeal's decision in Jackson v Marley Davenport Ltd [2004] 1 WLR 2926. There the court held that only reports intended to be relied on before the court at trial fell within the rule 35.10......
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...was on the contrast between, on the one hand, cases such as Carlson v Townsend [2001] EWCA Civ 511, [2004] 1 WLR 2415, and Jackson v Marley Davenport Ltd [2004] EWCA Civ 1225, [2004] 1 WLR 2926, and, on the other hand, cases such as ( Chand v Chand unreported 1 November 1978, Court of Appe......
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...extent of the right of silence. Legal professional privilege—United Kingdom (England) It was held in Jackson v Marley Davenport Ltd [2004] EWCA Civ 1225 that CPR, r. does not give a court the power to order the disclosure of a preliminary report by an expert which contains an opinion not ex......