Kirkman v Euro Oxide Corporation (CMP Batteries Ltd.)

LORD JUSTICE TUCKEY: This is a renewed application by the claimant for permission to appeal from the decision of HHJ Warnock made in the Bolton County Court that he could not rely at trial on a statement made by Mr Banks, a consultant orthopaedic surgeon.

The claim is for damages following an accident at work on 25 September 2001 in which the claimant sustained some injury to his right knee. Liability is admitted but there is an issue as to the consequences of this accident because the claimant had pre-existing problems in this knee.

Following the accident, in May 2002, the claimant underwent an operation for cruciate ligament reconstruction. Unfortunately, whilst in hospital his knee became infected with MRSA which resulted in an above-knee amputation the following year. The claimant’s case is that but for the accident he would not have had the operation in May 2002 and would not have contracted MRSA. He had been referred to Mr Banks by his GP a month before the accident with a request that Mr Banks would consider whether knee surgery was appropriate. Mr Banks had carried out an arthroscopy on the knee in 1994 but had not seen the claimant in 2001 by the time of the accident. He did see him after the accident and indeed carried out the operation in May 2002, after which he prepared two reports and provided other expert opinion for the purposes of this claim. But in 2005 another orthopaedic expert was instructed on the claimant’s behalf. The defendants have their own expert, reports have been exchanged and there has been an experts’ meeting. The order for directions limits each side to one orthopaedic expert.

Against this background, the claimant took the disputed one and-a-half page statement from Mr Banks. After setting out brief details of the uncontroversial history which I have summarised, the statement says at paragraphs 5 and 6:

“I have been asked whether I would have advised Mr Kirkman to undergo surgery following his referral to me in 2001 in the absence of the September 2001 accident. I would not have advised the surgery which Mr Kirkman in fact underwent in the absence of the accident in September 2001. I have been asked by the solicitors acting for Mr Kirkman not to give reasoning for the advice I would have given in the absence of the accident of September 2001 in order to avoid giving opinion evidence.”

The defendants objected to the admissibility of this statement on the grounds that it was expert evidence and the directions limited the claimant to one expert. For the claimant, it was contended that this was factual evidence. The district judge held that its admissibility should be decided by the trial judge. The defendants appealed, and the judge upheld their submission that it was expert evidence. He said:

“… it is simply wrong to say that because a statement can be fact -- namely what was Mr Banks’ opinion at the time -- the same cannot contain within itself expert views that are put forward to enhance the claimant’s case.”

In saying this, he appears to have been accepting the submission of defendants’ counsel which was:

“3.

The Defendant has no objection to Mr Banks stating what he saw and what surgery he undertook. Such are undeniably matters of fact.

“4.

However, expression of a view as to what he would have done or advised in a hypothetical situation by Mr Banks using his expertise is an expression of expert opinion. That is precisely what Mr Banks does at paragraph 5 of his statement. The situation about which he expresses an opinion (whether to operate in the absence of an accident) did not as a matter of fact arise for his consideration. Any comment by Mr Banks about what he might or might not have done in a situation which did not occur and with which he did not have to deal has perforce to be a matter of opinion.”

Mr Limb, for the applicant, submits that this is wrong. Often witnesses in this type of litigation where causation is an issue have to give evidence of what they would or would not have done if something else had or had not have happened. An example of this, he says, is to be found in the case of Bolitho v The City and Hackney Health Authority [1997] UKHL 46, this was a medical negligence case in which a doctor (Dr Horn) was asked to say what she would or would not have done had she had been called to deal with a medical emergency. Mr Limb submits that such evidence is evidence of fact, albeit it assumes a hypothetical factual situation. Just because the witness happens to be a professional, such as a doctor, does not mean that he is giving evidence as an expert.

I think there is much force in these submissions, although without hearing argument the other way I cannot say they will carry the day in this case. However, they well pass the threshold of arguability as required for an ordinary appeal to this court.

But the problem is that this is a second appeal. Mr Limb says that it has always been understood in this field that such evidence is admissible and relies on the Bolitho case to support this argument. If there is any doubt about it, he says that it is important that such doubt should be laid to rest. There is an important point of principle in this case. Mr Limb also submits that there is some other compelling reason for granting permission here because the prospects of success are high, and it is a very important point for the 30 year-old claimant because the consequences of the MRSA infection for him have been devastating. Whether or not he would have had an operation in May 2002 is a crucial issue.

In these circumstances, I am just persuaded that this appeal does raise an important point of principle and/or that there is some other compelling reason for this court to hear it and will therefore grant permission to appeal.

But I should add that the first two grounds of appeal, which complain that the judge should not have decided the question of admissibility at all and should have left the matter to the trial judge as the district judge did, have in my judgment no prospect of success. The judge was entitled to decide the point and was not stuck with the district judge’s case management decision.

For those reasons I will grant permission to appeal but only on ground 3.