Kirkman v Euro Exide Corporation (CMP Batteries Ltd)
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE SMITH,LORD JUSTICE BUXTON,Lady Justice Smith |
| Judgment Date | 25 January 2007 |
| Neutral Citation | [2007] EWCA Civ 66 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B3/2006/0925 |
| Date | 25 January 2007 |
[2007] EWCA Civ 66
Lord Justice Buxton
Lady Justice Smith
B3/2006/0925
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOLTON COUNTY COURT
(HIS HONOUR JUDGE WARNOCK)
Royal Courts of Justice
Strand
London, WC2
MR C LIMB (instructed by Messrs Fieldings Porter) appeared on behalf of the Appellant
MR D NOLAN QC (instructed by Messrs Langleys) appeared on behalf of the Respondent
This is an appeal brought with the permission of Tuckey LJ against a Case Management Order made by HHJ Warnock at the Bolton County Court. The appeal concerns the distinction between evidence of fact and expert opinion in the context of a personal injury action.
The claimant seeks damages for personal injury. In September 2001 he had an accident at work and he fell into a hole about 2 feet deep. His foot became stuck and he suffered a wrenching injury to the right knee. He had some previous history of a problem with his right knee. At the age of 17 he had a motorcycle accident. In 1994 his knee was investigated and a diagnosis was made of damage to the anterior cruciate ligament. The claimant was referred to Mr Anthony Banks, a consultant orthopaedic surgeon at what was then the Bolton Royal Infirmary. There is some confusion on the papers before us as to what treatment he then received. In any event, his knee problems subsided, but they recurred in 2001. The claimant's GP referred him back to Mr Banks and an appointment was made for 9 October 2001. However, on 25 September 2001 the claimant had his accident at work. He attended the hospital. The initial diagnosis was of a soft-tissue injury to the right knee. He was treated and told to keep his appointment, already made, with Mr Banks as a follow-up. On 9 October the claimant saw Mr Banks. An MRI scan was ordered; that was available in late November. It appears that thereafter Mr Banks advised an operation to reconstruct the anterior cruciate ligament. The operation took place on 8 May 2002. Most unfortunately the claimant developed MRSA, a virulent infection. He had extensive treatment, but eventually in 2003, he had to submit to an above-knee amputation of the right leg.
The claimant commenced proceedings in respect of the accident at work. Liability was not an issue, but an important issue arose as to whether or not the need for the operation which resulted in the development of MRSA was necessitated by the accident or whether the claimant would have undergone the operation even if he had not had the accident at work. This issue plainly makes a great deal of difference to the damages to be recovered.
The claimant initially obtained medical reports from an orthopaedic surgeon named Mr David Markham, but he has not sought to rely upon those. He also obtained medical reports from Mr Banks. The gist of these was that, had it not been for the accident at work, the claimant would not have had surgery in May 2002, although it was Mr Banks' view that he might have needed surgery in due course, say in about three to five years' time. Mr Banks also expressed the view that MRSA was an extremely rare complication in this kind of knee surgery. The accident at work had led to the surgery taking place when it did; that had led to the infection, which led to the amputation.
The claimant's solicitor also obtained an expert report from another orthopaedic surgeon, Mr Peter Kay. He referred quite extensively to Mr Banks' report and concluded that, absent the accident at work, it was likely that the claimant would have soldiered on without an operation for some further time and might never have needed one at all. As MRSA is a very rare complication, its occurrence would have been unlikely if the operation had taken place at any other time. The defendant's medical expert, Mr Parkinson, was of the view that the claimant's knee had deteriorated to such an extent before September 2001 that, even absent the accident at work, he would probably have had an operation in March 2002 with the same consequences as had in fact occurred.
Since meeting to discuss the case, Mr Kay and Mr Parkinson are now much closer in their opinions. Their joint review is that the claimant's underlying condition made surgery almost inevitable, but the accident brought forward the need for it to take place by about three months.
In May 2005, Deputy District Judge Jones ordered that the issue of causation be heard separately. Each party was given permission to rely on the evidence of one medical expert. It appears that the claimant's solicitor decided to rely on Mr Kay, and it was proposed to call Mr Banks as a witness of facts. Accordingly a witness statement was prepared, dated 17 September 2004. At a case management conference on 19 September 2004 the claimant sought permission to pursue this course, but District Judge Shaw would not allow it. She considered that the witness statement contained expert evidence. She made an order which included the following at paragraph 4:
“The Claimant is refused permission to rely upon the statement of Anthony Banks dated 17 September 2004 as it comprises expert evidence. For the avoidance of doubt the Court does not exclude Mr Banks as a possible witness of fact. Any amended written expert report arising herefrom is to be served by 1 November 2005.”
Thereafter another statement was drafted for Mr Banks, dated 7 October 2005. However, the defendant was still not prepared to accept that it contained only evidence of fact and the matter went back to District Judge Shaw. The defendant took exception to paragraph 5 of the new statement, which said:
“I have been asked whether I would have advised Mr Kirkman to undergo surgery following his referral to me in 2001 in the absence of the September 2001 accident. I would not have advised the surgery which Mr Kirkman in fact underwent in the absence of the accident in September 2001.”
He added at paragraph 6:
“I have been asked by the solicitors acting for Mr Kirkman not to give reasoning for the advice I would have given in the absence of the accident of September 2001 in order to avoid giving opinion evidence. I am fully willing to give my reasons if asked.”
District Judge Shaw directed that Mr Banks should attend court to give evidence, and that the question of whether his proposed...
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