Boyle v Commissioner of Police for the Metropolis

At 2.00am in the morning of Saturday 26^th January 2008 Jonathan Boyle met with a catastrophic accident. He was at or near a bus stop on Grove Road, London E3, when for no apparent reason he left (or fell from) the pavement and he was struck by a car coming along the road behind him. That car was being driven on his own by Mr Alf Currey, at that time an acting sergeant in the Metropolitan police force. He was responding to a call but was in no particular hurry. He was driving in a restricted area at somewhat over the speed limit, namely between 32 and 35 mph. Turner J, hearing the issue of liability, held that this was negligent and that a safe speed would have been about 28 mph.

Mr Boyle sadly has no memory of the event and is now a paraplegic. His case at trial was that Mr Currey should have been driving nearer the middle of the road than he was or should have swerved into the middle of road when he saw Mr Boyle. In either of these events, the accident would not have happened at all. Alternatively, if Mr Currey had been driving at 28 mph, his impact speed at the time of the accident would have been in the range of 20 to 23 mph rather than his actual speed at the time of impact, which was agreed to be in the range of 32 to 34 mph. In that event, it was said, that Mr Boyle would have suffered “less extensive injury”, as it was put in paragraph 8.10 of his Particulars of Claim.

The judge held that Mr Currey, whom he decided was a conscientious and credible witness, was not negligent in failing to drive nearer the middle of the road, nor was there evidence to suggest that if he had braked and swerved at the time he saw Mr Boyle the accident would not have occurred. For that to happen, the judge said, his driving speed would have had to be in the region of 20 mph. He also held that there was no evidence that if the impact speed had been 28 mph rather than 33 mph Mr Boyle’s injuries would have been less extensive. The position as to that was that Miss Gumbel QC for Mr Boyle had applied on the morning of the trial to serve out of time a three-page report with over 70 pages of statistical attachments from a medical expert on spinal injuries, Mr Gardner MA FRCS FRCP. This report had only been served on Friday 22 February, one working day before the trial was due to begin. The judge rejected her application, partly on the grounds that it was far too late for this expert evidence to be served, but also, and in his view importantly, on the ground that it did not in its current form assist the court to determine the extent to which Mr Boyle’s injuries would have been less extensive if the impact speed had been less.

There was no no correlation of any opinion to the attached 70 pages of statistics. All that Mr Gardner was able to say was “If the speed of impact was less, then the claimant’s injuries would probably be less” and “If a lesser degree of damage to Mr Boyle’s spinal cord had occurred, then his spinal cord would function better.” These comments are, as the judge himself said of the first comment, no more than a statement of the obvious.

Mr Boyle now appeals to this court with the permission of Arden LJ on essentially three grounds. (1) The judge misunderstood the expert evidence in relation to Mr Currey’s failure to swerve, or to brake and swerve, into the middle of the road. (2) The judge was wrong to conflate the issue of permission to serve the report and the issue of its utility. (3) Even if there was doubt as to utility of the report in the form it was presented to the judge, the right course was that the whole question of causation should have been deferred to the subsequent determination of the quantum of claim. I should explain there had already been an order for a split trial on liability and quantum. There could, said Miss Gumbel, be no prejudice to the defendant in such a course, save as to costs, which she accepts would have to be paid by the claimant.

I deal first with the factual matter or, as Mrs Gumbel put it, the misunderstanding of the expert evidence. Mrs Gumbel submitted that the judge misunderstood the experts as agreeing that Mr Currey would have had to be travelling at 20mph when the starting point was that Mr Currey was in fact driving at about 33 mph. If he had driving at about 28 mph, then, Mrs Gumbel said, Mr Currey would have had time to brake and swerve towards the middle of the road and would have avoided the accident. But in my judgment the judge did not misunderstand the agreed view of the experts, who had based their views on Mr Currey’s ability to brake and swerve once he had seen the claimant. See pages 208, 250, 339 and 354 of the bundle prepared for the Court of Appeal. Mr Boyle’s own expert, Dr Ashton, said at page 250 said that Mr Currey would have to have been travelling at less than 25 mph and possibly as low as 20 mph when he was at the point in road when he started to react to seeing Mr Boyle. That view on its own justified the judge’s conclusion, although it is right to add that the defendant’s expert, Mr Seston, put the figure as being “in the region of 20mph”. I do not see that there was any misunderstanding of the experts and it does not seem to me that the judge’s finding of fact on this matter can be faulted.

I now turn to the question of the admission of Mr Gardner’s report. This was the first matter dealt with by the judge on Tuesday 26 February 2013 when the trial began. As I say, the report had been served on Friday of the week before the trial was due to begin. This was absurdly late, especially since the trial was originally due to start on Monday 25 February. The judge of course had a discretion in the matter, and whether one calls his decision a case management decision or not, which is what Mr Bishop submitted it was, does not seem to me to matter very greatly. In fact, the judge considered the matter carefully. He followed the notes to part 35 in the White Book which said that a late application to call expert evidence was effectively an application for relief from the sanction of being unable to call expert evidence which had not previously been served. The judge considered all the matters he was required to consider under the then current version of CPR 3.9 (it has since April of this year been considerably simplified). It is, in my judgment, impossible to see that the judge has gone wrong in his assessment of those factors in any way, especially in the light of the fact that the claimant’s solicitors had been expressly invited, in correspondence from the defendant’s solicitors, to serve the necessary evidence. There was not before the judge, and there still is not, any explanation of how the matter came to be ignored or overlooked.

As to the conflation of the issue of serving Mr Gardner’s report and the issue of whether it was in an adequate form for the purpose of assisting the inquiry as to whether Mr Boyle’s injuries would have been less extensive if Mr Currey had been driving at what the judge called the safe speed of 28mph, it seems to me that the judge was again correct. There could be no point in serving a report which did not assist the judge. It would only assist the judge if Mr Gardner were in some way permitted to give oral evidence expanding on his report or if the judge were prepared to order a meeting between Mr Gardner and the defendant’s expert, Mr Troman, to see if they were able to reach an agreed view on the question of whether the injuries would have been less. But neither course would have been consistent with the proper deployment of expert evidence, which is that both experts should produce a written report, and then and only then meet to see whether, in the light of those reports, agreement could be reached. All this has to be done well before the date of trial, not during the trial process itself. Once the judge had decided, rightly in my view, that the expert evidence in the form presented was not useful to him, it was inevitable that he should decide that that evidence should not be adduced at all.

Perhaps Mrs Gumbel’s more persuasive submission was that it was, in the circumstances, sensible to have adjourned the causation inquiry until the judge had made findings as to the speed at which Mr Currey ought to have been driving. Medical experts could then have factored those conclusions into their causation report and, as I have said, her submission was that there could be no prejudice to the defendant in that course save perhaps as to the extra costs which could be paid by the claimant.

That might have been a sensible approach when the original case management conference was held, but at that conference it was decided, no doubt by agreement between the parties, by Master Kay on 16 February 2012 that liability should be determined first and quantum should be decided at a later hearing. Once Master Kay had decided that liability was to be determined first, causation had to be addressed. That was the purpose of Master Kay ordering that the parties were to have permission to adduce expert evidence in the field of spinal surgery, and that the claimant’s expert report was to be served by 22 June 2012. Any trial merely of the questions of breach of duty and of the safe speed for Mr Currey to be driving would be not only contrary to Master Kay’s order, but would have been conducted in a vacuum without either counsel or the judge having any idea of the consequences of any particular finding. It seems to me that the judge was right not to contemplate any such outcome so late in the day.

There is the further important consideration that, as must now be well known, the courts are becoming less and less tolerant of failure to serve expert evidence in accordance with previous orders of the court, just as they are becoming less and less tolerant of other breaches of court orders. It is not merely prejudice to the parties that matters. There is prejudice to the system of justice as a whole and, in particular, to waiting litigants if their cases are to be deferred because of delays in litigation currently before the court. We were referred to a case in the early days of the Civil Procedure Rules, in which this court, albeit in a case where the expert evidence sought to be relied on was on an extremely narrow point, said that the whole thrust of the CPR regime is to require the parties to behave reasonably towards each other in the conduct of litigation and that the old culture, which used to drag personal injuries cases out, should now be at an end, see Baron v Lovell [2000] PIQR 20 at 27 per Brooke LJ. This has been emphasised over and again in subsequent decisions, two of which, as it happens, Fred Perry Holdings Ltd v Brands Trading Plaza Ltd [2012] EWCA Civ 224 and Mannion v Ginty [2012] EWCA Civ 1667, are referred to in the notes to rule 3.9 in the current supplement of the White Book. As the judge in this case said, any court is reluctant to see a catastrophically injured claimant go uncompensated, but there has to be a clear message that prolonged and persistent failures to comply with court orders may well result in cases being dismissed. In the present case, one cannot know what any properly adduced expert evidence would conclude, but we cannot interfere, as it seems to me, with the decision of the trial judge, properly arrived that, that permission to call late expert evidence had to be refused and that the case at trial had to fail.

I would therefore, albeit reluctantly, dismiss this appeal and echo the final sentence of the judgment:

“Doubtless the claimant will be fully and frankly advised as to the implication of these findings”.

I agree.