Lane v Willis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE SACHS,LORD JUSTICE ROSKILL |
| Judgment Date | 30 November 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J1130-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 November 1971 |
[1971] EWCA Civ J1130-3
Lord Justice Davies
Lord Justice Sachs and
Lord Justice Roskill
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Talbot - London)
Mr. MICHAEL TURNER (instructed by Messrs. Lawrence Graham & Co.) appeared on behalf of the Appellant (Defendant).
Mr. HENRY BROOKS (instructed by Messrs. Baker & McKenzie) appeared on behalf of the Respondent (Plaintiff).
This is an appeal, by leave of the judge, from an order of Mr. Justice Talbot made on the 6th October. He had before him an appeal by the defendant from an order of lister Lubbock made on the 3rd September. The Master had had before him an application by the defendant for a stay of proceedings in default of the plaintiff submitting himself to medical examination by Dr. Leigh, an extremely well known psychiatrist. The Master refused to make the order, and that refusal was upheld by the learned judge. From that refusal, as I have said, the defendant appeals.
The history of the matter is as follows. On the 16th May, 1968, the plaintiff, who was a man aged 55, suffered injuries in an accident. On the 13th September, 1968, the plaintifffs solicitors sent to the defendant's solicitors a medical report by a surgeon, Mr. Moynihan, dated 12th August of that year. Apparently for a time negotiations took place. On the 3rd January, 1969, the writ was issued; and on the 16th June, 1969, the Statement of Claim was served. The Defence was served in May, 1970. Apparently that delay was explained by a series of negotiations with a view to settlement. Nothing further happened until, in February of this year, there was an order to carry on the action, the original defendant having died; and there was an order for leave to amend the pleadings. With regard to medical evidence, the order of the faster provided for a medical report to be agreed if possible: if not, that the medical evidence be limited to three witnesses for each party.
The Amended Statement of Claim was served on the 8th February, 1971. I think it is right that at this stage I should turn to the particulars of Injuries both in the original and in the Amended Statement of Claim. The injuries set out in the original Statement of Claim were stated very shortly. Paragraph 2 reads as follows: "By reason of the matters aforesaid, the plaintiff suffered pain, injury, lose and damage which are continuing Particulars of"injuries: Bruising of chest. Contusion of left knee. Hervous shock, depressive anxiety state". That is the lot. By amendment, it reads (and I will read it incorporating the original): "Bruising of chest. Contusion of left knee, stirring up pre-existing minor degenerative changes in left knee joint and causing swelling and pain. Nervous shook, depressive anxiety state. The Plaintiff, who was aged 55 years at the date of the accident, was detained overnight in hospital for observation, and subsequently attended Holloway Sanatorium for 1 week in December 1968 for E. C. T. treatment for severe depression. He has suffered sleeplessness, nightmares, frequent bouts of depression lasting 1 - 2 hours, lost weight through losing his appetite. He previously enjoyed driving, which is essential for his work. As a result of the accident he is tense, irritable, and on edge when driving and feels exhausted after short drives. He may well have to retire prematurely from his employment instead of continuing until the age of 65, which would cause him substantial loss of earnings and of pensions payments. He has further sustained a recurrence of backache caused by a pre-existing prolapsed intervertebral which was exacerbated by the accident". So it can be seen that, although some of those extra matters are undoubtedly referred to in Mr. Moynihan's report of August, 1968, nevertheless the allegations contained in the Statement of Claim are very considerably expanded by the amendment. The Defence was amended on the 3rd March.
I now turn to the question of the medical examination. On the 19th April, 1969, Dr. Carroll, a neurologist, examined the plaintiff on behalf of the defendant. In February of the following year, though nothing much turns on this, a Mr. Shires, who is an orthopaedic surgeon, examined him with regard to his knee injuries. Then after the amendment made in this year the same Dr. Carroll had two examinations of the plaintiff, on the 14th May and 9th July. Apparently the defendant's solicitors had been pressing Dr. Carrollfor some twelve months to make a further examination but, for some reason we do not know, they did not receive any reports from Dr. Carroll until, as I have said, may and July of this year.
On the 5th August of this year the defendant's solicitors (or the defendant's insurance company; it does not matter which) asked the plaintiff's solicitors that the plaintiff should submit to medical examination by the well-known psychiatrist Dr. Leigh, to whom I have already referred. That was refused: hence this application.
We have a short note of the judgment of Mr. Justice Talbot; and I refer only to two passages in it. He mentions certain authorities, to which I shall have to turn shortly, and he goes on: "I think the Court should approach with considerable care, bearing in mind that it is being asked as stated by Lord justice Donovan in Pickett v. Bristol Aeroplane Company 'although this Court has inherent jurisdiction to do what is here asked, I am clear that the power should not be exercised in this case. Indeed, for myself I would go the whole length of saying that it would be wrong in this class of action to make an order which in effect shuts out the plaintiff from the seat of justice, even if he refused all medical examination on behalf of the defendants, and still less if, as in this case, he merely objects to the particular doctor they choose. The sanction, if any, lies elsewhere'". I would interpolate there that tor myself I find it difficult, as did Lord Justice Widgery, as he then was, in the subsequent case of Edmeades v. Thames Board Mills Ltd., to see what other sanction could be available. To continue with the judgment of Mr. Justice Talbot, his final conclusion is in these terms: "In those circumstances, was the refusal of the request unreasonable? If the examination does not take place, is the proper issue going to be prevented from being determined?"; and the judge answers that question "No".
The whole question, as I think. In the present case is: In the circumstances, was the defendant's request for a further psychiatricexamination reasonable; or was the plaintiff's refusal to submit himself to it reasonable?
I am bound to say that, though I think the defendant has been guilty of some dilatoriness and although, as has been emphasised in the course of the argument by Lord Justice Sachs, there was not put before the Master or the judge, or this Court, any expert or medical evidence to show that such an examination is desirable, and indeed necessary, for the defendant properly to conduct his defence to this claim, I think that on all the history of this case it is a reasonable request and ought to be granted.
We have been referred to a number of authorities in this case and it is necessary that I should deal with them to some extent. The first case to which I would refer is an unreported case of Pickett v. Bristol Aeroplane Company Ltd., from the judgment of Lord Justice Donovan in which the learned judge quoted. That was a case in 1961, and it was a decision of this Court composed of Lord Justice Willmer and Lord Justice Donovan. I do not propose to quote any more than did the learned judge in the note of his judgment which I have just read. But I would point out two things which are inherent in what Lord Justice Donovan said: one, that the Court expressed no doubt at all that there was jurisdiction to make such an order, and secondly, that the real ground on which the court acted there was that the defendants were insisting on an examination by one particular doctor to whom the plaintiff objected. That was the basis of their refusal to make the order. It is perfectly true that in the instant case it is only one particular doctor, namely Dr. Leigh, that the defendant is suggesting should examine the plaintiff. But Mr. Brooke, who has appeared for the plaintiff in this Court, has said in terms that it is not the personality of the doctor, Dr. Leigh, to which objection is taken: objection is taken on principle that there should be no further medical examination by anyone. So much for Pickett v. Bristol Aeroplane Co. Ltd.
I turn now to the decision of this Court in Edmeades v. Thames Board Mills Ltd., in 1969 2 Queen's Bench at page 67. It is a well known case. The Court on that occasion was composed of the Master of the Rolls, Lord Denning, Lord Justice Widgery and myself. I think I need cite from that case one passage only. I should just preface my quotation from It by saying that in that case the defendants were wanting a further examination by any one of six doctors and the plaintiff rejected them all. In the original pleading the plaintiff's injuries were stated to be: "Abrasions of the left shin; swelling of the left foot, ankle and thigh) partial rupture of the quadriceps muscle; and it was claimed that the injuries had caused him to give up gardening, which had put him to further expense". But subsequently it became clear from an examination of him by a doctor on his own behalf (I am reading from page 68 at "E") that he was suffering from "a small marginal fracture of the left patella" - mentioned for the first time - and the doctor "added that, if that were so, there had been a...
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