Starr v National Coal Board
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CAIRNS,LORD JUSTICE SCARMAN,LORD JUSTICE GEOFFREY LANE |
| Judgment Date | 08 October 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J1008-2 |
| Date | 08 October 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J1008-2
Lord Justice Cairns
Lord Justice Scarman and
Lord Justice Geoffrey Lane
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: Mr. Justice Mais In Chambers - London)
(Revised),
Mr. CHARLES McCULLOUGH, Q.C. and Mr. IAN A.B. McLAREN (instructed by Messrs. Blyth Dutton Robins Hay, Agents for Messrs. Hopkin & Sons, Mansfield) appeared on behalf of the Appellant (Plaintiff).
Mr. PAUL KENNEDY, Q.C. and Mr. ROBIN DENNY (instructed by Mr. J.G. Tyrrell, Nottingham) appeared on behalf of the Respondents (Defendants).
Lord Justice Scarman will deliver the first judgment in this case.
This is an appeal from an order of Mr. Justice Mais made on the 5th July, 1976, by which he ordered that all further proceedings in the action were to he stayed unless and until the plaintiff submitted himself to a medical examination on behalf of the defendants by a doctor whom I shall call "Dr. X.", as reasonably required by the defendants. The learned judge, who was of course sitting in chambers, refused leave to appeal. At the outset of the hearing before us we granted the plaintiff leave to appeal; and I am now giving judgment in the substantive appeal.
The action is one brought by Mr. William Starr against the National Coal Board for damages for personal injuries which he asserts were suffered as the result of certain incidents in the course of his employment by the National Coal Board. The writ was issued on the 29th October, 1974. It was necessary to obtain leave for the issue of the writ, under the Limitation Act, 1963, and that leave had been granted on the day before the writ was issued.
In his statement of claim the plaintiff alleges that he has been employed by the Coal Board from 1965 and in the course of that employment has been required to use an electric boring machine to carry out roof-bolting work underground. The nature of his case is that he was not provided with any support equipment when using that machine and, as a result, his arms and elbows came under severe strain. In paragraph 3 of the statement of claim he describes, by way of particulars, his injuries in the following terms; and I quote that part of the statement of claim: "The Plaintiff who was born on the 17th day of December 1930 has sustained ulnar nerve compression as a result of which the nerves at the elbows and in the hands have become damaged and the surrounding area inflamed. The Plaintiff hashad operative treatment on his elbows on the 23rd day of February 1973 but still suffers from the effects of such nerve compression in the hands and also suffers from hypersensitivity of both scars on his elbows".
The defendants have filed a defence, and pleadings in the action are closed; but no summons for directions has yet been issued.
The question which the learned judge had to decide, and which is now before this Court, is whether the plaintiff was entitled to refuse to be examined by a particular doctor. It is conceded by Mr. McCullough, Queen's Counsel, for the plaintiff (the appellant in this Court) that this is an appropriate case for the defendants to seek the advice of a neurologist and to seek the plaintiff's consent to a medical examination by a neurologist. It can be put, perhaps more shortly, in this way: the defendants need, for the proper deployment of their defence, to be advised by a consultant neurologist who has had the opportunity of examining the plaintiff.
The defendants have nominated Dr. X. Put summarily, the plaintiff has said: "Any consultant neurologist other than Dr. X.: but under no circumstances Dr. X."
Before I finish with the history, I may say in passing that Dr. X. is a consultant neurologist of high reputation and fine qualifications. There is no suggestion made in this case that Dr. X. would be anything but impartial in any examination that he might undertake, or in any report that he might make. The apprehensions of the plaintiff - or, more correctly, of his advisers - are more subtle than one would have were there an attack upon the professional competence or personal integrity of Dr. X. It is only fair that at a very early stage in my judgment I should emphasise that no such attack is made upon Dr. X.
The history of the matter, so far as it concerns Dr. X., is as follows. In 1975 a specialist; Mr. John Varian, examined theplaintiff on behalf of the defendants. He was provided with a copy of the report of a Dr. Atherley dated 21st October, 1974. His examination took place on the 20th March, 1975, and his report is dated 1st April of that year, Mr. Varian, who is a Fellow of the Royal College of Surgeons, sets out the medical history (which it is unnecessary, I think, for me to relate in judgment) and describes the present medical situation of the plaintiff – that is to say, "present" when he was making his examination – as follows: "Continuing soreness in both elbows. Tingling in all the fingers of both hands, which has been present since last summer". Then, in brackets, Mr. Varian comments "(He" - that is, the plaintiff - "has seen Dr. Godwin-Austen, the consultant neurologist in Nottingham, twice just prior to being seen by me)".
Mr. Varian found it very difficult to express an opinion upon the case. In the part of his report headed "Opinion and Prognosis" he said that it was "difficult, or almost impossible, after this period of time to make an exact judgment of whether or not Mr. Starr's ulnar nerves were damaged and if so what was the cause". He mentioned a number of matters which added to his difficulties. Again I need not relate them. Having considered them, he said: "Either Mr. Starr is not telling the whole truth and is not co-operating with his examiners and pretending weakness in the whole of both upper limbs, or Mr. Starr is suffering from some more generalised nerve disease or some condition in the spine or spinal cord causing more widespread symptoms in both arms". "For this reason", said Mr. Varian, "I would very much like to know the conclusion reached by Dr. Godwin-Austen earlier this month, who specialises in sorting out this sort of problem".
It is no surprise that when the defendants' legal advisers received Mr. Varian's report they thought it necessary to obtain a neurologist's opinion. In the first place they asked (as Mr. Variansuggested) for a sight of Dr. Godwin-Austen's report. The plaintiff's solicitors, however, replied, in a letter dated 18th September, 1975, "Our report from Dr. Godwin - Austen reveals that our client has suffered injuries which are already given in the statement of claim. We do not feel that at the present stage of this case we could agree to send you a copy of Dr. Godwin-Austen's report, and if you wish to obtain your own medical evidence from a consultant neurologist, we would, of course, he prepared to co-operate in the usual way".
That was a latter which the plaintiff's advisers were perfectly entitled to write; and it expresses an attitude which at that stage in this litigation was a completely legitimate attitude. It is to he noted that they were "prepared to co-operate" if the defendants wished to obtain their own medical evidence from a consultant neurologist.
The defendants did so wish; and their solicitor, by letter dated 26th September, informed them that he was instructing a consultant neurologist, Dr. X., in connection with this matter.
The plaintiff's solicitors' reply to that letter is of importance. By letter dated 30th September they said as follows (and I quote the exact words): "We do not wish to be obstructive but for reasons already made known to your office several years ago we are not prepared to arrange for our client to be examined by" Dr. X. "Would you please nominate another consultant neurologist".
On the 2nd October the solicitor to the defendants wrote that he did not accept that in this case the defendants were not entitled to have the plaintiff medically examined by a consultant of their choice; and he asked for the reasons for the present standpoint of the plaintiff's solicitors. In answer to that letter the plaintiff's solicitors repeated that they were not prepared to allow their client to be examined by Dr. X., but were prepared to consider anyother neurologist whom the defendants might suggest. They said, as to the reasons for their attitude, "We prefer not to set them out in a letter. However, we feel sure that if you make enquiries in your Department the reasons will become readily apparent".
There was, thus, deadlock. The defendants applied to stay all further proceedings in the action unless and until the plaintiff submitted to medical examination by the neurologist of their choice, namely Dr. X. The District Registrar, on the 11th June of this year, refused a stay. The defendants appealed, and Mr. Justice Mais, in chambers, made the order to which I have already referred and which is now under appeal.
The notice of appeal sets out a number of grounds, and I propose to refer to those that have proved to be vital in the consideration of this appeal. In his notice of appeal the plaintiff seeks to submit that the learned judge was wrong in law in holding that there were no reasonable grounds upon which the plaintiff could refuse to be medically examined by Dr. X.; that he was wrong in law in holding that the plaintiff must submit to such an examination and should have held that a reasonable belief by the plaintiff or his advisers that the proposed medical examination might be conducted without due regard to the feelings of the plaintiff and/or a reasonable belief that the proposed examination and subsequent report might be unfair to the plaintiff was a sufficient and adequate reason for refusing such an examination; and that he was also wrong in law in holding that the plaintiff was not...
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