Ball v Wessex Water Services Ltd (t/a Wessex Water)

J U D G M E N T

Wednesday, 12th October 2005

1. LADY JUSTICE HALLETT: The applicant, Mr Ball, seeks an extension of time of 2 months and permission to appeal an order made by His Honour Judge Bursell QC on 5th July 2004 whereby he awarded the applicant just £800 in general damages and £25 in special damages.

2. The background to this litigation can be stated shortly. On 6th July 1999 the applicant fell down a manhole maintained by the respondent. Liability was conceded in February 2000. The quantification of damages remained very much in issue, with the applicant arguing that he has been severely injured psychologically, if not physically, and has suffered from severe depression. He says that he may never work again and is dependent upon state benefits.

3. The respondent argued that the applicant was fit to return to work after just two weeks and any psychological problems were not in any way caused or contributed to by the accident.

4. In addition, by the time of the trial of the quantum issue, the applicant's claim for special damages had grown from approximately £250,000 to over £500,000. Thus the differences between the parties in the assessment of damages were stark.

5. The applicant was initially represented by solicitors, but by the time of the quantification of his damages he had become a litigant in person. He decided, for reasons that I shall come to in a moment, not to attend the hearing.

6. The applicant is much aggrieved at the way in which he says the hearing was conducted, claiming his case has not been heard properly. He wishes to appeal the damages awarded to him and he seeks the opportunity to put his case fully at a rehearing. He also wishes to put before the court fresh psychological evidence dated September 2005.

7. The applicant's notice is dated 13th September 2004 and he explains the delay in lodging the papers on the basis that he is a litigant in person and lives in Australia. He says he has had difficulties in communicating with the court by fax. He prefers e-mail.

8. The reason the hearing proceeded in his absence is set out in a note of the judgment of His Honour Judge Bursell. The learned judge examined the contents of e-mails that had passed between the applicant and the respondent's solicitor, Mr Jones. Originally it had been expected that the applicant would take part in the hearing via a web cam or telephone link. It seems that the applicant had not appreciated that he would be responsible for arranging such a link and so His Honour Judge Bursell had expressed his concerns. Mr Jones relayed those concerns to the applicant. In an e-mail dated 2nd July 2004, Mr Jones set out Mr Ball's options. Mr Ball responded to the effect that he was too poor and too ill to travel and had neither the funds nor the time to arrange a video conference. He said the idea of a telephone link had never been suggested, although oddly he adds that he had thought such a link was an option for him. In his e-mail, also dated 2nd July 2004, he asks the judge to deal with the case in his absence.

9. His first ground of appeal is that Mr Jones, the solicitor, misled him during a telephone call before the e-mails of 2nd July, into believing that a telephone link was not possible. He claims that Mr Jones improperly pressurised him into asking the judge to proceed without hearing from him. As a result, he claims, his case was never put before the learned judge properly and Mr Jones had an open floor. He argues that he has not received the assistance from the judiciary to which he was entitled as a litigant in person.

10. His second ground of appeal relates to the evidence put before the court. In August 2002 the district judge gave permission for the use of three experts, who had already been jointly instructed, one in the field of orthopaedics, one in the field of neurology, and one in the field of clinical psychology. Later, permission was given to the applicant to rely upon and call at trial, if he wished, the clinical psychologist who was called Mr Crone. However, the applicant submitted to Mr Crone records from his general practitioner in Australia with which the applicant had tampered. The applicant admits that he did tamper with these documents, but maintains that he did not intend thereby to mislead the expert or the court. Mr Crone felt unable to rely upon statements made by the applicant as a result and so he withdrew.

11. Another district judge, using her case management powers, withdrew permission for the applicant to rely upon a clinical psychologist in 2003. No appeal was made from that decision. Thus, as matters stood, the only experts upon whom permission to rely had been given were the two who were in fact called before His Honour Judge Bursell: the orthopaedic surgeon and the neurologist.

12. Other orders were made as part of the case management process as to the service of documents in relation to Mr Ball's claim for special damages. He failed to comply with those orders and the result was that an unless order was made. The respondent argued before His Honour Judge Bursell that although the applicant had filed some documents in response to the unless order, his failure to comply in full with that order meant his claim for special damages should be struck out.

13. Thus, as far as causation and the extent of the applicant's injuries were concerned, the only admissible material put before His Honour Judge Bursell was the evidence of the two doctors and the applicant's own statement.

14. Unfortunately for the applicant, both doctors opined that although the applicant himself described a galaxy of symptoms, including impotence, they could find no physical cause therefor; and, whatever the applicant's present level of disability, it had not been caused by the accident.

15. Further, the orthopaedic surgeon was of the opinion that the applicant was fit to return to work after two weeks. In fact Mr Ball returned to work after only five days. He remained in his pre-accident employment for many months thereafter. The applicant insists he did so because he was pressurised into returning and he could not have coped with his work but for taking a cocktail of painkillers.

16. The learned judge found, on the basis of the evidence presented to him, that although the accident was unpleasant and frightening, it led to only minor physical injures, namely abrasions to his legs which required dressing and for which he was prescribed painkillers. He found that the only evidence of special damage before him related to those painkillers and dressings. It was on that basis that he assessed the damages at the level that he did.

17. Mr Ball complained that the judge relied upon his general practitioner's "sick-notes". This I take to be a reference to the fact that his general practitioner had signed him off as unfit to work for just one week following the accident.

18. Mr Ball argues that the judge failed to consider important medical evidence from his doctors in Australia and elsewhere. This evidence, in fact, consists of the applicant's own account of the findings of doctors he has consulted over the years. As I have indicated, he now wishes us to consider a new report from a clinical psychologist which he contends supports his case that it was as a result of the accident that he has suffered psychological damage of a severe nature.

19. We have heard from Mr Ball by way of telephone link during the course of this hearing. He informed us during that telephone call that he was not aware, at any stage, that he was not permitted to rely upon expert evidence at the hearing of the damages issue without the permission of the court.

20. I hope I have summarised accurately and fairly, in the time available, the arguments as put before us by Mr Ball. We have a considerable number of documents which I have considered with care. The fact is that this applicant launched proceedings in this country, having already left to live in Australia. I accept there were bound to be problems in conducting his litigation from there in person. Making allowance for the fact that he became, mid-litigation, a litigant in person, I have no doubt, having seen all the material from him, and heard him via the telephone link, that the terms and effect of the case management decisions and court orders must have been plain to him. The net result of those orders, which were not successfully appealed, is that the only material and admissible evidence on quantum, apart from the applicant's own account before the judge, came from the two doctors.

21. In my view it is not surprising, therefore, that the judge came to the conclusions that he did. Arguably he would have been perverse to find otherwise, given the burden upon the applicant of proving his case.

22. As for the applicant having been misled into not taking part in the proceedings, having considered again with care the contents of the two e-mails of 2nd July, I am satisfied that Mr Ball could not have been improperly pressured by Mr Jones in failing to take part in the hearing.

23. It is plain on the reading of Mr Jones' e-mail, the contents of which I have not rehearsed, that he set out totally objectively the options that Mr Ball had. There is no evidence whatsoever that this applicant has been misled or mistreated in any way by the respondent's solicitors or indeed the court.

24. Had there been any merit in the proposed appeal I might have been persuaded to extend the time for appealing in all the circumstances, but I am satisfied that this appeal is entirely unarguable. It is far too late to attempt to adduce fresh evidence, the delay in providing which has not been adequately explained, if at all. The applicant had his opportunity to obtain medical evidence, to seek permission from the court to rely upon it, and to put his case fully to the court. He chose not to do so. He is not the kind of man, in my judgment, to succumb to pressure from the other side even if there had been any. In my view there is evidence of none.

25. Accordingly, I for my part, would reject this renewed application for extension of time and permission to appeal.

26. LORD JUSTICE WARD: I agree.

ORDER: application refused.