Toth v Jarman
Jurisdiction | England & Wales |
Judge | LORD JUSTICE SCOTT BAKER,SIR MARTIN NOURSE |
Judgment Date | 19 July 2006 |
Neutral Citation | [2006] EWCA Civ 1028,[2005] EWCA Civ 1771 |
Docket Number | B3/2003/1176,Case No: B3/2003/1176 |
Court | Court of Appeal (Civil Division) |
Date | 19 July 2006 |
[2005] EWCA Civ 1771
Lord Justice Scott Baker
Sir Martin Nourse
B3/2003/1176
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand
London, WC2
MR CLIVE RAWLINGS appeared on behalf of the Appellant
MISS MARY O'ROURKE appeared on behalf of the Respondent
Judgement
Thursday, 8th December 2005
This is a very sad case. The appellant's little boy, Wilfred, died on 9th October 1993. He suffered from a rare condition called glycogen storage disease when he was five years old.
The appellant sued the respondent, a general practitioner, for negligence, claiming that his failure timeously to administer intravenously glucose caused the little boy's death. The appellant's claim for damages was for the psychiatric injury that he suffered as a result. HHJ Harris QC found that the respondent was negligent. This was not contested at the trial but had been up until that time, but he found that the claim failed on causation; the boy would have died anyway. He had already suffered irreversible and fatal brain damage by the time that the respondent failed to administer the injection. But the Judge went on to say that he would have awarded £30,000 damages had the claim succeeded.
HHJ Harris's decision was as long ago as 9th May 2003. The appeal has been bedevilled by delay. It is now fixed following a hearing before Chadwick LJ last month for 7th and 8th March of next year and that date is not to be vacated without the order of the court. The difficulties that the appellant has faced have been of funding his appeal. It is unnecessary to go into the background. Suffice it to say, he has currently awaiting determination of an application for judicial review of the Legal Aid Board's decision to refuse him funding for the appeal. Happily, however, he has been provided with funding for today's application. Today's application was set by Chadwick LJ last month in order to resolve what was to be done with regard to the appellant's claim to adduce further evidence in two respects: first of all, from Dr Beary, a consultant psychiatrist and, secondly, from the appellant himself. Chadwick LJ was concerned that an issue of this kind should not blow up at the hearing without some prior involvement of the court. In particular, there was concern that if further evidence was to be admitted there should not then be an adjournment in order that it could be answered by the respondent.
Taking first Dr Beary, he is a consultant psychiatrist and he was the appellant's expert at the trial. His opposite number, appearing for the respondent, was Professor Oyebode. The Judge suggested during the trial that they should meet with a view to eliminating what appeared to be the small remaining difference of opinion that there was between them. The experts met accordingly. There was also in the bundle of medical evidence a psychiatric assessment by Dr Flavia Leslie, a consultant psychiatrist, and that was something that had post-dated, I think, at least one of the expert's reports. What Dr Beary says is this:
"The Appellant's counsel and the court received a copy of our joint report only moments before I was due to take my place in the witness box. There was no time to discuss its contents or meaning and representations to this effect were made to the Judge by the Appellant's counsel. I was very surprised on reading the judgment dated 9th May 2003 to note that the Learned Judge has made certain findings based on my evidence, including the joint second report of Professor Oyebode and myself which, with all due respect to the Learned Judge, did not represent my views."
What Dr Beary says is that he was prevented from having the opportunity to explain the position to the Judge so that the Judge could have avoided making the error that Dr Beary now believes the Judge made in his judgment.
Miss O'Rourke for the respondent submits that Dr Beary has simply got his facts wrong in his witness statement that has been put before this court. On a detailed analysis of various passages of the transcript that will become apparent. We do not know at this juncture what Professor Oyebode has to say about the contents of Dr Beary's statement; how much, if any of it, he accepts.
This court has today had to consider what course we should take with regard to the application to permit Dr Beary's evidence to be adduced before the full court as further evidence. We only have a very general picture of the issues at the trial and of the issue to which Dr Beary's further proposed evidence relates. In these circumstances, for my part, and bearing in mind that on its face Dr Beary's statement appears to raise matters that should be drawn to the attention of the full court, I would adjourn this application to the full court for it to consider in the ordinary way whether it is prepared to accept the further evidence proffered from him. In my judgment, the full court is going to be in a far better position, if necessary having heard argument on the appeal before making a final decision, than are we today to make a final decision upon this matter which, in the light of events that may emerge at the trial, could prove to be an injustice to one side or the other. Therefore, that is the order that I would propose with regard to Dr Beary. The respondent will no doubt be prepared at the appeal with any evidence in response.
The second aspect of the claim to adduce further evidence comes from a witness statement from the appellant himself. That witness statement, I understand, was prepared by him as a litigant in person at a time when he did not have the advantage of advice or representation. It is very discursive in its form and runs to some 26 paragraphs over nine pages. Essentially, what he is seeking to do is to suggest that the respondent's expert on causation at the trial, Professor Sir David Hull, should not have been accepted by the Judge because the Judge was misled as to a number of matters including his expertise. This is summarised as follows:
"… Professor Sir David Hull:
(a) does not have the experience of the condition which my son had which he, in his oral testimony, claimed to have;
(b) has not conducted any research relevant to my son's condition as he claimed to have done;
(c) has not published the number of research papers that he claimed;
(d) could not reasonably have believed that the evidence which he gave during the trial was correct."
For my part, taken at face value, I have very grave doubts as to whether this evidence passes the test in Ladd v Marshall. In particular, I cannot see why these questions could not have been dealt with at the trial. I appreciate that there are arguments both ways with regard to this. We have not explored them in any detail today and, again, although I have real doubts as to whether this evidence will, in the event, be admitted by the full court trying the appeal, I have come to the conclusion that it would be wrong to take what in my experience is an exceptional course in ruling against the application on an interlocutory appeal, rather than leaving it to the full court hearing the appeal. It seems to me now that the appellant has representation that it would be highly desirable that those advising him go through this witness statement and crystallise and put into more succinct form those aspects of it which appear to those advising him to have at least prima facie merit. One suspects, reading this, and already the picture from material lodged in answer to it suggests that this is so, that there is a very straight forward answer to a great many of the allegations that the appellant makes.
I would, therefore, adjourn both these applications to the court hearing the appeal, indicating that the respondent should be in a position to file, or at least seek to file, at the hearing any evidence in response that it is sought to put in in answer to either of these witnesses' statements.
I agree and do not wish to add anything of my own.
[2006] EWCA Civ 1028
The President
Lady Justice Arden Dbe and
Lord Justice Wall
Case No: B3/2003/1176
1996 T 609
George Pulman QC and Clive Rawlings (instructed by Messrs Radcliffes Lebrasseur Solicitors) for the Appellant
Miss Mary O'Rourke (instructed by The Medical Defence Union) for the Respondent
Sir Mark Potter, P:
Introduction:
This is a judgment of the court, to which all members have contributed, upon the appeal by the claimant, Mr Toth from the judgment of His Honour Judge Charles Harris QC sitting as a Deputy High Court Judge in the Oxford District Registry dated 9 May 2003. The action before the judge was an unusual one in which Mr Toth sought damages for nervous shock and psychiatric injury which he alleged had been caused to him by the defendant, who was a medical practitioner, by his negligent treatment of Mr Toth's five year old son Wilfred in October 1993 almost ten years before.
The defendant was called to Mr Toth's house one morning in order to give emergency treatment to Wilfred who had suffered a hypoglycaemic attack and was unconscious....
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