Rahman v Kirklees Area Health Authority (Practice Note)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD,LORD JUSTICE CUMMING-BRUCE |
| Judgment Date | 22 November 1979 |
| Judgment citation (vLex) | [1979] EWCA Civ J1122-1 |
| Court | Court of Appeal (Civil Division) |
[1979] EWCA Civ J1122-1
Lord Justice Ormrod
Lord Justice Cumming-Bruce
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Queen's Bench Division
MR. J. M. COLLINS (instructed by Messrs. Kingsley Napley & Co., London agents for Messrs. Stapleton Gardner & Co., Dewsbury) appeared on behalf of the Appellant.
MR. I. A. KENNEDY, Q.C. and MR. R. C. TAYLOR (instructed by Messrs. Hempsons, London Agents for the Yorkshire Regional Health Authority; appeared on behalf of the Respondents.
Lord Justice Cumming-Bruce will deliver the first judgment in this matter.
This is an action for medical negligence. The negligence alleged is that, "by reason of the failure of the defendants, "by their doctors, surgeons or other servants, to exercise proper skill and care, the plaintiff was subjected to delivery by caesarian section which, if it could not have been avoided altogether by proper diagnostic skill, was at any rate not carried out at the right time or at all before the death of the baby. There is an allegation that, during the period immediately preceding the birth, there was a want of proper supervision of the patient by the appropriate specialist eyes or hands; and there is a further allegation that the defendants re-established a cyntocinon drip without proper consultation and without proper consideration of harmful effects.
The defence admitted some facts that could not be controverted and accepted that the plaintiff had had a stillbirth and was found to have suffered a uterine rupture, which led to drastic surgical interference. The defendants content themselves with a denial of negligence, putting the plaintiff to proof of matters of fact alleged.
The summons for directions came before the learned Registrar and, after ordering discovery of documents, he made the following order: "Medical Reports be exchanged and that if not agreed medical evidence be limited to one witness for each party whose reports have been exchanged. … Trial Place Leeds. Mode Judge alone." There was an appeal of that order and, on the appeal, the learned judge allowed the appeal and ordered that "direction number 23 "be deleted from the Summons for Directions herein and no limit be imposed on the number of Medicalexpert witnesses to be called on either side." Item 23 on the Summons for Directions is the item dealing with the agreement of medical reports and the restriction of medical witnesses. The plaintiff appeals.
Mr. Collins for the plaintiff appellant appeals two parts of the learned judge's order. He seeks an order that: "The Plaintiffs and Defendants do mutually disclose medical reports within forty two days; such reports be agreed if possible; unless such reports are agreed the parties be at liberty to call experts on medical matters limited to those witnesses whose reports have been disclosed and limited to three witnesses for each party".
I come first to the appeal in relation to the judge's decision that there should be no mutual disclosure of medical reports. The relevant rule is Order 38 Rule 37 which appeared in the Rules of the Supreme Court in relation to actions for personal injuries and bears that heading. The rule reads:
"(1) Where in an action for personal injuries an application is made under rule 36(1) 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.
"(2) The Court may, if it thinks fit, treat any of the following circumstances as a sufficient reason for not giving a direction under paragraph (1):-
(a) that the pleadings contain an allegation of a negligent act or omission in the course of medical treatment; or
(b) that the expert evidence may contain an expression of opinion -
(i) as to the manner in which the personal injuries were sustained".
Mr. Collins submitted that, on a scrutiny of (1) it is clear that the starting point is that the court shall directdisclosure of the reports of expert witnesses subject only to the proviso that such a direction shall not be given "unless the Court considers that there is sufficient reason for not doing so". He also submitted that (2) does no more than give some illustrations of certain kinds of case which are not intended to be exhaustive and are selected by the Rules Committee only as illustrations of certain kinds of situation in which the court may find there is a sufficient reason for refusing disclosure. So construing or explaining Order 38 Rule 37, Mr. Collins submits that, on the issues in this case - although it is, of course, a medical negligence case because that is what the pleadings allege - when the issues raised by the pleadings are considered, there is nothing so special about them as to make it right in the exercise of the judge's duty to find that a sufficient reason for refusing disclosure has been shown.
For myself, I do not accept the explanation and effect of Order 37 propounded by Mr. Collins. Sub-rule (2) of that rule goes further than merely indicating as illustrations the kinds of situation which might appropriately be regarded as sufficient reasons for refusing to direct exchange of reports. In my view, the Rules Committee has clearly thought it appropriate expressly to distinguish the situation where expert evidence is being called in other kinds of actions for damages for personal injuries from the forensic situation that obtains where an allegation of medical negligence is made as a cause of action. For myself, I can see at once the commonsense of that distinction because one of the features of an expert report for the defendants in a medical negligence case is that, in order to found an opinion, it is commonly necessary for the expert to be given all or most of the proofs of fact of...
To continue reading
Request your trial
-
Naylor v Preston Area Health Authority
...rule 38 confers a wide discretion upon the court. However, both learned judges regarded the decision of this court in Rahman v. Kirklees Area Health Authority [1980] 1 W.L.R. 1244 as establishing guidelines on the exercise of that discretion which, in the words of Mr. Justice Tudor Evans we......
- Dea Ai Eng v Dr Wong Seak Shoon
-
Z Ltd v A-Z and AA-LL
... ... meaning, they bear out what I said in Rahman Abu Tu (1980) 1 Weekly Law Reports at page ... I append hereto a note of that case ... 9 In view of that extension, ... No authority was given by the customer for his account to be ... (1933) 1 King's Bench 47 ... In practice, however, the position of banks creates ... ...
- Faridah Ariffin v Dr.Lee Hock Bee