Hague v Rexam Glass (Barnsley) Ltd.

This is an appeal from a decision of His Honour Judge Moore sitting in Sheffield given on 12^th April 2005. The facts which give rise to the appeal put shortly and starkly are these. The judge decided by way of preliminary issue that the appellant did not have vibration white finger (VWF) or hand arm vibration syndrome (HAVS) as it is now more accurately called. He did so having heard only the appellant give evidence, and no oral medical evidence. He found that the appellant had none of the symptoms of HAVS. He further said that he knew that if the appellant’s expert had heard the appellant’s evidence he would not have continued to support the appellant’s case that he had HAVS.

The solicitors acting for the appellant have since the trial shown a transcript of the appellant’s evidence to that expert and they say that the expert would on the basis of that evidence still have supported the appellant’s case and wish to put that evidence in as fresh evidence in the Court of Appeal. They assert that the appellant had an unfair trial being prevented as they would say from calling his expert to establish his case.

Mummery LJ when granting permission to appeal said “the decision made without hearing oral medical evidence relevant to the preliminary issues is a cause for concern and is sufficient to persuade me that there is a compelling reason for the hearing of this appeal by the full court.” On the above bare facts I can understand Mummery LJ’s concern.

It is however the respondents’ case that the above facts do not represent the whole picture, and on a proper analysis of what occurred and on a proper analysis of what the appellant’s expert actually now says it can be seen that the trial process was fair and any cause for concern is dispelled.

The appellant (Mr Hague) brought an action claiming that he had contracted VWF or, as it is now called, HAVS. He did so, he alleged, while working for the defendants now respondents (Rexam). He had a report from a consultant vascular surgeon Mr Cuschieri to support his case. That report did not (it is important to note) spell out for the reader the classic symptoms of VWF or HAVS. It did however make clear that HAVS was one of those conditions where the description supplied by the patient as to his symptoms was the only basis on which a diagnosis could be made. The report seemed to assume a knowledge on the part of the reader as to what the symptoms of VWF or HAVS were. To the initiated the description which the appellant had given (referring to “demarcation”) did indicate a classic symptom:-

The defendants also had a consultant vascular surgeon’s report from Professor Charlesworth. That report again did not set out to identify classic symptoms. Its conclusion was:-

The two experts had produced a joint report recording their disagreement in the following terms :-

On the basis of a history of an exposure to vibratory tools, circumferential and well demarcated blanching, RJC believes that Mr Hague was VWF and he puts him at 3L4 3R4 for vascular and 2 SN on the Stockholm scale.

DC disagrees, he does not think that Mr Hague has VWF because:

Originally Mr Hague’s action was one of six tests cases but by the time of trial the test cases had been reduced to two. It is important furthermore to place these test cases in their context.

HAVS has been the subject of considerable litigation before the courts. A passage from the judgment of Smith LJ in Montracon Ltd v Whalley[2005] EWCA Civ 1383, helpfully explains the nature of HAVS and the context in which HAVS claims have come to be made.

There has been a tendency in the interests of saving expense and court time to have cases concerned with HAVS tried in groups by certain judges with test cases and preliminary points being tried. Judge Moore who was the trial judge in this case plus counsel who were involved had been involved in much of the previous HAVS litigation. The judge had considerable experience in trying cases concerned with VWF or HAVS. He had tried Montracon v Whalley. That was a case in which the expert for the claimant having heard the claimant give evidence and having doubts about his veracity, changed his mind as to whether he thought the claimant had VWF. HH Judge Moore rejected the views of both medical experts and found that the claimant suffered from VWF. His decision was upheld by the Court of Appeal; he also tried Doherty v Rugby Joinery where his decision to reject the claims of eight claimants was upheld as to four and reversed as to four [2004] EWCA Civ 147.

Directions had been given for the trial of these two test cases including permission for the experts to give oral evidence. Those directions had not been made by Judge Moore. The two sides had also agreed a programme for the trial of the two test cases, which involved a number of issues. The time for the trial was agreed as 5 days. The programme involved commencing on the Monday 11^th April 2004 and the medical evidence being called on the Friday. That programme had not been agreed with the court or by Judge Moore although the court had been notified of the parties’ agreement, but the effect would have been to have each of the claimants give evidence in the absence of the medical experts, and for the experts to give evidence later.

The case came on for trial on Monday 11th April 2005 before Judge Moore. When this trial commenced, he very laudably and properly had in mind the objectives of the CPR including ensuring that court time was not wasted with considering irrelevant points if there was a short point, which was determinative of the case. Thus it was that he expressed the view at an early stage of Mr Lewis’ opening in the following terms:-

That led him then to say:-

The judge then gave Mr Lewis the opportunity to consider whether he was content for the trial to proceed on the basis that he would hear Mr Hague’s evidence as to whether he had VWF or HAVS without hearing the doctors’ evidence. Mr Lewis having considered the matter with his instructing solicitors was content for Mr Hague to be called to deal with this aspect but was not prepared to concede that medical evidence might not be necessary. The interchange with the judge went as follows:-

There was thus a consensus between Mr Lewis and the judge that the question whether it was necessary to have the medical experts called could be reviewed once the appellant had given his evidence. It is again important to stress that both counsel and the judge were familiar with HAVS, and were aware of the importance in the assessment of whether a claimant had HAVS of the description that the claimant gave of his symptoms.

There were of course before the court the various reports from Mr Cuschieri and Professor Charlesworth including the joint report. It is important in the context of one of the points that arises on the appeal to note that Mr Cuschieri and Professor Charlesworth examined the appellant with a view to diagnosing whether he had sensori-neural symptoms consistent with him having HAVS but the concentration was on his vascular symptoms and there was no suggestion from either that he might be suffering from sensori-neural symptoms caused by having HAVS quite independently from any vascular symptoms. The joint report quoted above makes that clear.

Mr Hague gave evidence. Some of the evidence he gave was in answer to questions by the judge whose expertise in this area was evident. The judge gave Mr Hague every opportunity to describe his symptoms, and indeed since he the judge had asked many questions he gave Mr Lewis latitude in the questions he could put to Mr Hague, and Mr Lewis’ expertise in this area was also evident.

It was not as I read the transcript ever being suggested to Mr Hague that he was lying about his symptoms or that he was malingering. But of course the fact that someone suffers vasculatory problems does not establish that they suffer from HAVS. What many of these cases are about is distinguishing, in cases where complainants describe vasculatory problems, between those cases where someone may have come to hope that their symptoms will support a claim against their employers, but which in fact do not, and those that do. The questions from the judge and the questions from Mr Lewis concentrated on the appellant’s vascular symptoms, and the question whether the symptoms he described were consistent with HAVS. The appellant gave some evidence of sensori-neural problems referring to “letting things drop” “judging the strength of his grip” describing how these symptoms occurred “mainly in cold weather” [see page 118], but the judge and Mr Lewis were concerned to obtain from the appellant a detailed description of his vascular symptoms those being the basis on which Mr Cuschieri had diagnosed HAVS.

In two major respects the appellant described symptoms which the judge thought (and indeed no one disputes) were contra indications to HAVS at least as being caused by vascular problems. First the appellant described how after an attack when his fingers turned white “there is a gradual return of colour in my fingers” which he said took some “30 to 35 minutes” [page 121] for the fingers to be restored to normal, whereas the judge’s view was (and again in this it is accepted he was correct) that if anyone suffered white fingers as a result of HAVS, the return to normal must be spontaneous. As the judge was to explain in his judgment his experience showed that the effect of HAVS if it is to produce white fingers is akin to a kink in a hose pipe and thus if the kink is released the flow of blood is immediate.

Second the appellant in describing how his hands and fingers looked when he was suffering an attack of HAVS, said “well there is no clear demarcation line it is a difference of shading, of colour” and although he might have appeared to change this evidence, clarified the position to the judge ultimately by making clear “there is no very clear distinction. It is not like a red and white stripe” [see 120 and 126]. The judge’s view was that if HAVS was causing white fingers the description that a patient would give would include the fact that there was a clear “demarcation”. Indeed it was that demarcation which the appellant had reported to Mr Cuschieri.

The judge expressed the strong view towards the conclusion of Mr Hague’s evidence and then at the conclusion of his evidence, that what Mr Hague was describing was not HAVS or VWF. In so doing he was undoubtedly utilising the experience he had gained in other cases in an exchange with counsel who also had experience in other cases.

The judge at this stage informed counsel for Rexam that he did not need him to cross-examine Mr Hague, and submissions were then made by Mr Lewis and he addressed the judge as follows:-

It will be noted that Mr Lewis did not revert to the question whether medical evidence should be called. The thrust of his point was to accept that at least in one regard what the appellant had described in his evidence as his symptoms were not consistent with his having HAVS, but he was submitting that the judge should conclude that a claimant may have difficulty in describing symptoms in the witness box and the judge should conclude that the appellant had given an accurate description to Mr Cuschieri, and should thus follow Mr Cuschieri’s view. It will also be noted that Mr Lewis at this stage did not suggest that even if the appellant’s evidence did not support the case of his vascular problems i.e. his white fingers being caused by HAVS, his evidence did support a case that the appellant suffered from HAVS with only a sensori-neural consequence.

The judge did not accept Mr Lewis’ invitation to approach the case on the basis of what the appellant had told Mr Cuschieri. He did not call on Mr Limb, counsel for Rexam. He then gave a judgment in favour of Rexam concluding amongst other things:

After the judgment, the solicitors acting for Mr Hague consulted Mr Cuschieri, and put before him at first a note and later a full transcript of the appellant’s evidence and a note and then a transcript of the judge’ judgment. Correspondence ensued. There is an application to put the correspondence and in particular Mr Cuschieri’s responses in as fresh evidence in this court.

The notice of appeal asserts that the trial process was unfair because the judge had wrongly determined to hear and decide the preliminary issue without the necessary oral medical evidence, and because the judge had wrongly imported expert evidence from previous cases without giving the experts in this case the opportunity to deal with them. Mr Lewis realistically accepted that his appeal would have little purpose unless he could show that Mr Cuschieri if he had been called would have had some prospect of being able to persuade the judge that the appellant did suffer from HAVS. He submitted that with the fresh evidence he had that prospect.

We have looked at the correspondence de bene esse. The main thrust of the views which Mr Cuschieri expresses (and they are not absolutely clear) seem to be (1) that because the appellant’s evidence of his vasculatory symptoms as given in evidence were at times contradictory and since his opinion was based on what he was told in February 2002 he did “not feel the need to change his opinion”;(2) that in HAVS sensori-neural symptoms can exist either in isolation or in association with vascular symptoms. He also expressed the view that he was commenting “without the benefit of watching the proceedings which incurs some disadvantage”. [see his letter of 1^st June 2005]

It is accepted that the principles identified in Ladd v Marshall [1954] 1 WLR 1489 are still relevant to the question whether fresh evidence should be admitted in the Court of Appeal. They are (1) the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; (3) the evidence must such as is presumably to be believed; it must be apparently credible, though it need not be incontrovertible.

Mr Lewis’ submission is that the judge had decided to try the preliminary issue without hearing the medical evidence orally, and that he was prevented from calling Mr Cuschieri. He submits that in the way the trial went he did not have the opportunity of obtaining the view of Mr Cuschieri on the evidence given by the appellant. The new reports of Mr Cuschieri could not thus he submits have been obtained with reasonable diligence for use at the trial; they would he submits have had an important influence on the result of the trial and are apparently credible.

He submits that if he had informed Mr Cuschieri of the appellant’s evidence and been able to call Mr Cuschieri that would have supported the appellant’s case in two ways. First he submits that he would have had some prospect of persuading the judge even on the basis of the evidence that the appellant had given, that he was wrong to reject the appellant’s case that he had HAVS causing vascular symptoms i.e. white fingers. Second he submits that even if that were wrong, the reports support a case that the appellant suffered from HAVS with only sensori-neural symptoms, a matter which the judge overlooked. He submits that the unfairness has deprived the appellant of an opportunity of succeeding in establishing that he does suffer from HAVS with vascular consequences and/or sensori-neural consequences.

Mr Limb’s response is first that it is inaccurate to say that the judge had actually decided to hear the case without hearing oral medical evidence or that the judge actually prevented oral medical evidence being called. He had suggested that it was possible for him to do so, but any decision as to whether he should do so or not was postponed until after Mr Hague gave evidence. Second he submits that where a judge tries a series of cases concerned with something like HAVS, the assumption must be that he will use his experience gained in previous cases, and that is perfectly legitimate so long as no one is taken by surprise or deprived of an opportunity of dealing with the information that the judge is using. In this case not only was the judge very experienced in HAVS but so were counsel on both sides, and even the experts reports seemed to assume a degree of knowledge of the classic symptoms not feeling it necessary to spell those out. Third he submits that there was no objection to the appellant’s evidence being taken by the judge in the absence of the experts, indeed the programme agreed between the two sides contemplated that as being the way evidence would be given. Fourth once the evidence had been given Mr Lewis did not seek to have time to put the appellant’s evidence before Mr Cuschieri or seek to have Mr Cuschieri called to give evidence. He suggests that Mr Lewis appreciated with his expertise in this area that if the appellant’s description in evidence of his symptoms had to be accepted, Mr Cuschieri would not support the appellant’s case that he was suffering from HAVS. For that reason Mr Lewis was submitting that he was entitled to go back to the way the appellant had described things to Mr Cuschieri.

He submits that even looking at the correspondence de bene esse, one can see that the judge was clearly right and indeed Mr Lewis was right in concluding that Mr Cuschieri would not on the evidence that the appellant gave have supported the appellant’s case that he was suffering vascular symptoms as a result of HAVS. What he submits has happened is that a new case is now being trailed by Mr Cuschieri - not the case at the trial, and not a case at which Mr Lewis hinted in his final submissions i.e. that the appellant is suffering from HAVS but with only sensori-neural symptoms. If that case had been sought to be made at the trial he would have submitted it had no support from the medical experts in their reports and should not be allowed to be made once the appellant had given evidence.

He submits that the appellant is in fact seeking to put in fresh evidence in the Court of Appeal relating to the possibility that he is suffering sensori-neural symptoms as a result of HAVS quite independent of his vascular symptoms, which, if it had been his case, was evidence which was available at the time of trial. He thus submits that on the first limb of Ladd v Marshall we should refuse to admit the evidence.

In any event he submits that if the damage said to have been suffered is limited to the sensori-neural symptoms described by the appellant they are atypical of HAVS as Professor Charlesworth had explained, and in any event even if that does not dispose of the claim completely, would give rise to a very limited claim to damages.

The bare facts set out at the commencement of this judgment might give the impression that the judge “prevented” relevant oral evidence being given. Although there is a general discretion in the judge to exclude evidence see CPR 35.1.1., it is difficult to think of a situation in which it would be fair to “prevent” relevant evidence being called; the discretion would seem to be aimed at repetitive evidence or evidence which the judge deems to be so peripheral as to be of no assistance to him or her. However, although a little concerned at the judge’s robust approach, I think it is unfair in the final analysis to say that Judge Moore “prevented” relevant evidence being given. He suggested that oral expert evidence might not be necessary, and undoubtedly he did so on the basis of his experience in trying HAVS cases. He cannot in my view be criticised for using his experience in previous cases as long as it was plain to the parties what experience he was using and as long as they had an opportunity to challenge what they perceived to be misconceptions. In this instance he made plain to counsel, also familiar with HAVS, the symptoms which he was saying were inconsistent with HAVS, and no one suggested at the trial nor do they suggest now that he was wrong. No request was made to put in evidence to challenge the judge’s views on contra-indications.

Furthermore expert evidence is under CPR 35.5(1) to be given by written report unless the court otherwise directs. Although the court had otherwise directed in this case, it must always be open to the court to reconsider that question. That was what Judge Moore proposed as a possibility, but he accepted he should only finally rule whether oral evidence should be given once the appellant had given evidence.

Both sides had agreed a programme under which the appellant was to give evidence without the medical experts present. If the appellant was to describe his symptoms differently from that which the experts recorded him as providing, the experts were on any view going to be at a disadvantage as compared to the judge. So both sides were placing great reliance on the judge as to his ability to discern whether the appellant was describing HAVS symptoms.

Judge Moore and counsel for both sides were aware when the appellant was giving evidence that his description of what I might term non-spontaneous recovery was inconsistent with HAVS or at least the vascular problems caused by HAVS, and that his description of there being no clear demarcation line was equally inconsistent. It is not suggested that any evidence could have been given to contradict the Judge’s understanding as to these contra-indications.

The fair description of what happened in this case was that, following the appellant giving evidence, Mr Lewis formed the view, quite properly because of his own experience which was consistent with that of the judge and indeed all the experts, that the appellant had given evidence of symptoms inconsistent with him having HAVS, and that there was no point in calling Mr Cuschieri to support the appellant’s case on the basis of that evidence. It did not occur to him on the basis of any report from Mr Cuschieri that there might be a case to be made on the basis that the appellant’s sensori-neural symptoms alone were caused by HAVS. He therefore took the decision not to request the judge to allow oral evidence to be given, and sought to argue that the judge should approach the matter by reference to the description given to Mr Cuschieri rather than the appellant’s evidence. That was an approach that the judge was entitled to reject and did reject.

Mr Cuschieri, in the correspondence since the trial, does not support the appellant’s case on the basis of the descriptions given in the witness box. When asked this question:-

The reliance on sensori-neural problems being something that a patient may suffer quite independently from vascular problems is a totally new case. It is certainly not a case which Mr Cuschieri was supporting in his original report or one even hinted at in the joint report. If Mr Lewis had anticipated that Mr Cuschieri could support a sensori-neural case rather than a vascular case and had applied to the judge to permit him to give evidence on that basis, the judge would have been bound to refuse that application on the basis that the claimant was trying to make a new case at trial not foreshadowed in the expert’s reports in the form they then took.

In any event such sensori-neural problems as the appellant may have appear minor, and Mr Cuschieri’s reports are hardly compelling in their support for possibility that they are caused by HAVS. Professor Charlesworth would clearly be of the view that they were not so caused.

As a general proposition it must be wrong for a judge to take the view that he could decide medical matters without the assistance of experts if one party or the other wished to call that evidence. But that is not on a proper analysis a fair description of the circumstances of this case. So far as contra-indications of HAVS were concerned the judge and counsel with their experience were aware of them and no one wished to call evidence to suggest that the judge was under a misapprehension as to those contra indications. Indeed on the case as it was being presented by the appellant at the trial, once he had given evidence there was no submission that any oral evidence from the experts would assist the judge. There was no prevention of such evidence being given. On the appeal the attempt is in reality to put in fresh evidence of a case which could have been made at trial but was not; if it was a case that could have been made at trial, there is no reason why the evidence should not have been made available in a report for the trial, and there is no reason why it should now be admitted on this appeal. The new case even now is in fact weak in the extreme. Even if successful it could not in any event be of great value. If it were otherwise justice might have demanded that the evidence should be admitted and a retrial contemplated, but I am quite clear that that would not be right in the circumstances of this case, and the appeal should be dismissed.