Rall v Hume
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE POTTER,POTTER LJ |
| Judgment Date | 08 February 2001 |
| Neutral Citation | [2001] EWCA Civ 146,[2001] EWCA Civ 153 |
| Date | 08 February 2001 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | NO: B3/2001/0082,Case No: PTA2001/0082/B3 |
[2001] EWCA Civ 146
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ALDERSHOT COUNTY COURT
(His Honour Judge Thompson)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Potter and
Lord Justice Sedley
Case No: PTA2001/0082/B3
John Bate-Williams Esq (instructed by Stuchberry Stone, London,) for the appellant)
Paul Stewart Esquire (instructed by Amery-Parkes) for the respondent
INTRODUCTION
This is the appeal of the defendant in a personal injury action from the decision of His Honour Judge Thompson in the Aldershot County Court on 3 January 2001 dismissing the defendant's appeal from the Case Management Decision of District Judge Fuller dated 13 December 2000. Thus, it is a second tier appeal. However, we granted the defendant permission to appeal at the outset of the hearing on 17 January 2001on the grounds that it raises an important point of practice so far as the reliance upon video evidence in personal injury actions is concerned. Having heard the appeal, we then indicated our decision and the order which we would make, so that the trial might proceed on 22 January 2001, stating that we would give our reasons later. They appear below.
THE PROCEDURAL HISTORY
The action concerns an injury caused to the claimant in a road accident in August 1996 in respect of which liability is admitted. The claimant is a young mother. She was aged 31 at the time of the accident, since when she has had two children. On 6 December 1999 she obtained judgment for damages to be assessed. At the same time an order was made that the case be listed before a District Judge on 2 May 2000 for Disposal/Directions.
As pleaded in the particulars of personal injury in Particulars of Claim dated 15 July 1999, as a result of the accident the claimant suffered an injury to her neck, left shoulder and lower back causing immediate pain and stiffness. However, contemporary x-rays were normal. For a time after the accident the pain increased and the claimant suffered a number of unpleasant symptoms which then diminished to an extent but affected her sleep. She required physiotherapy for her physical symptoms and counselling from a psychologist to deal with travel anxiety and depression. She had to give up her active hobbies and had considerable difficulties in the tasks involved in caring for her baby following her pregnancy. It is said that she continues to suffer physical and psychological symptoms and that, having moved to Australia with her husband, it was necessary to return to Britain to live so that she could have the support of her family in various domestic tasks necessary to look after a young family. The original claim for damages was limited to £50,000. However, the claimant's schedule of damages dated 30 July 1999, in addition to special damages of £6,750 claimed future losses in the sum of £68,283 on the basis that the claimant would need permanent additional domestic assistance from her husband for 10 hours per week claimed at £4.50 per hour and applying a multiplier of 28.
So far as general damages are concerned, the claimant's medical condition has gradually improved from that described in an orthopaedic report dated 16 March 1998 and reports of a clinical psychologist dated 11 and 23 February 1998 served with the particulars of claim. Her progress appears from the orthopaedic report of Mr E.J. Smith dated 12 April 2000 and a psychiatric report from Doctor G Bennet dated 17 August 2000 upon which the claimant proposes to rely at trial. In the latter report, it is stated that:
"She has been much isolated by the limitations placed on her by not being able to participate in sports and in getting around generally. She has also commented on the considerable extra burden which has fallen on her husband."
"… many tasks are made more difficult with her neck and back pain, in particular … picking up small children."
". . she only drives locally around Chepstow along familiar roads."
"She regards her difficulty in driving, and the limitations it places on her life, as a 'major problem' "
On the basis of that evidence the substantial claim for future loss is maintained.
Reverting to the history, the directions hearing duly took place on 2 May 2000 when directions were given in relation to the timings and agreement of future medical reports and the service of updated statements and schedules of damage, and a direction was made that the matter be re-listed before District Judge Fuller for further Directions/Disposal on 9 October 2000. No trial date was fixed.
By 2 May 2000 the solicitors for the defendant were in possession of a covertly taken video film containing footage relating to the claimant's movements on 8 February 2000 and 15 February 2000. The video evidence showed her going about her daily tasks with her child, including journeys in her car without any apparent difficulty. The video evidence was not disclosed at that stage as it was clear from the medical reports previously relied on that the claimant was going through a continuing process of improvement and it would not be clear before the up-to-date reports were available whether what was shown on the video was at odds with her case as it would be advanced at trial. However, when the updated medical evidence was obtained from Mr Smith on 12 April 2000, the defendant's insurers instructed his solicitors to disclose the video to the claimant's solicitors, which they did on 21 June 2000.
A second video was obtained by the defendant's solicitor on 11 September 2000 containing footage of the claimant in the course of her shopping and child caring activities on 21 and 24 August 2000. Again it appeared to show her having a normally active life without difficulty and on one occasion making a lengthy (rather than local) car journey. Instructions were obtained that the video should be disclosed and it was disclosed to the claimant's solicitors on 10 October 2000. If (as was by then intended by the defendant) the videos were to be relied upon at trial, the second video should plainly have been disclosed prior to the Directions hearing set for 9 October so that any directions relating to or consequent upon the proposed use of the videos could be dealt with by the court. However, the need for disclosure before that date was not appreciated at the time; both sides had in fact overlooked the provision in the order of 2 May for the 9 October appointment (it appeared on the second page of the order, the text of which apparently ended on the first page). Consequently, neither party appeared before District Judge Fuller on 9 October and the claim was struck out. Both sides were still not aware of the position on 10 October, when the second video film was disclosed.
The claimant's solicitors quickly applied to have the claim reinstated and that the case be re-listed for further Directions/Disposal. That application was supported by a statement of the solicitor with conduct of the claimant's case which explained and apologised for the error and ended: "I respectfully request that this case be re-instated and listed for Further Directions/Disposal hearing". Since the defendant's solicitors did not wish to take advantage of the claimant's solicitors error, and because no further directions were apparently being sought by the claimant at that stage, they simply wrote a letter to the court consenting to reinstatement.
The reinstatement hearing before District Judge Caron on 6 November 2000 was attended only by the claimant's solicitor. District Judge Caron ordered that the case be re-instated and that it be listed for a Case Management Conference on 13 December 2000 with a time estimate of one hour. He also took the opportunity, on the basis of the case as described to him, to list the case for disposal, i.e. trial, on 22 January 2001 with an estimate of four hours.
On receipt of the order, the defendant's solicitors resolved that they would apply to rely upon the video evidence at the Case Management Conference on 13 December, and did so.
THE DISTRICT JUDGE'S DECISION
At the Case Management Conference, a transcript of which is before us, District Judge Fuller refused the defendant's application. He stated that the application was made too late. He said that, if the defendant wished to adduce the video evidence, he should have made application to that effect at the first Directions hearing on 2 May 2000 in relation to the first video and that, in relation to the second video, further application could have been made at the hearing of the reinstatement application before District Judge Caron, who was...
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