Craven -Hodgson v Athersmith

LADY JUSTICE KING: This is an application for permission to appeal against an order of His Honour Judge Peter Hughes of 8 March 2015 allowing the respondent's appeal against a case management decision of District Judge Masheder dated 18 December 2014, granting permission for both parties to rely on the evidence of pain management experts.

The claim arises out of a road traffic accident on 16 March 2011, when the applicant drove his motorcycle into a stationary vehicle on a sharp bend. The applicant suffered significant injuries, including a comminuted fracture to the head of the femur, which ultimately required a total hip replacement. By the time the matter came before the deputy district judge for a case management conference, the court had the benefit of three experts, a Mr Cox, the orthopaedic surgeon for the applicant, Mr Hodgkinson for the respondent and a Dr Simpson, a psychiatrist on behalf of the applicant. In addition, there was covert surveillance footage of the applicant which had been obtained between February and July 2014. The deputy district judge heard submissions from both parties before acceding to the application made by the applicant for the instruction of pain management experts.

Unhappily, there is no transcript of the deputy district judge's judgment; the court has counsel for the respondent's detailed note and now, in his skeleton argument, counsel, Mr Wells' note of the determination by the judge. Notwithstanding this deficiency, both parties sensibly asked the judge to proceed on the basis of the note at the appeal heard by His Honour Judge Peter Hughes. In any event, both agreed that the deputy district judge used the words of CPR 35, namely that the applicant had to establish that the expert evidence was “reasonably required”. They also agreed that the judge had noted the significant impact on costs of the instruction of what would mean an expert on each side, before concluding that the judge had said that a judge would need “further assistance” from a pain expert.

In a very full judgment, the judge directed himself to CPR 35.1, quoting from the well known authority of Broughton in relation to the dangers of an appeal court interfering with a discretionary case management decision, further he made at paragraph 8 of his judgment no secret of the fact that he himself would have reached a different conclusion, but said:

"The question essentially for me is in accordance with the decision of the case of Broughton I have referred to, whether the decision made by the deputy district judge is either simply wrong or that he failed to take account of the relevant factors."

The judge ultimately concluded:

"Whilst I am very reluctant indeed to interfere with a district or deputy district judge's decision in case management matters, and very reluctant indeed simply to substitute my own judgment for his judgment, which is not the approach that I ought to adopt, I am driven, having looked at all these matters and carefully considered them, to come to the conclusion that the judge, as I have put it, lost sight of the real issues in the case and as a result of that was led into a decision which was inappropriate in the context of the issues in the case and the case overall. For those reasons, this appeal is allowed."

The applicant's case, put equally frankly before the judge, was that, whilst he recognised that the decision was a generous decision which other judges might not have reached, it was not so wide of the mark as to be outwith the wide ambit of the judge's discretion.

The judge had based his conclusions on his analysis of the medical evidence, comparing in particular the evidence of Mr Cox, who, having examined the applicant in July 2014 (when the applicant had complained of fairly widespread and significant pain and discomfort), took the view that the opinion of a consultant in pain management would be beneficial. However, once having seen the surveillance evidence, Mr Cox's view was that the claimant's presentation on the surveillance footage indicates that he was capable of some tasks and that a pain specialist was not necessary.

In relation to the other evidence, Dr Simpson, the psychiatrist, could not deal with the issue of the need for a pain specialist, but felt that the surveillance material raised questions about the applicant's reliability as a historian.

Finally, so far as Mr Hodgkinson was concerned, he was of the view that the ongoing symptoms of pain described by the applicant were difficult to explain, and he would have expected by this stage him to have had virtually normal function and mobility. The judge fairly, however, although he read Mr Hodgkinson's further report made post the surveillance tapes, declined to take that report into account, hinting that to have done so would have been prejudicial to the applicant.

The judge, having concluded this analysis of the experts, concluded that the real issue was not the management of pain but what pain the applicant was genuinely feeling, saying that:

"... the essential issues are twofold. First of all what is the level of the claimant's residual disability? That is essentially a matter for the orthopaedic specialists [I interpose there to say Mr Wells does not take issue with that aspect, the residual disability so far as issues other than pain, that is to say]. The second is whether or not he is a genuine historian. The function of a pain management expert is just as those words indicate, to assess how the claimant's pain as reported can best be managed. It is not a function of a pain management expert to consider whether the claimant is a reliable historian or not. It is not the function of the pain management expert to assess whether the pain which the claimant complains of is organic, caused by the injuries that he sustained or otherwise."

The judge went on to say at paragraph 17 that he regarded the case as not being unusual and that:

"... the real issue in the case is not management of pain but the question of what pain the claimant genuinely has that results from his injuries. That is something which is properly within the province of the orthopaedic experts."

The judge therefore concluded that the deputy district judge had lost sight of the real issues and had accordingly gone outwith the wide ambit of his discretion.

Turning then to the application for permission to appeal, I have had the benefit of the helpful skeleton and the written statement prepared by Mr Wells pursuant to 52CPD 16. In his skeleton, Mr Wells suggested that the judge did not understand the nature of pain management. He pointed to the fact that the claimant had told the doctors that he was in pain, and therefore it was exactly the type of case where pain management evidence was required, the pain which he described to the orthopods not tying in with that which they would have expected.

The ground of appeal is that the district judge made this order in the exercise of his discretion in circumstances where routinely, even though there may be issues of fact outstanding; (in this case, whether or not the pain described was genuinely felt by the applicant as opposed to whether or not, if it is in fact felt, it is psychological or organic) that case managers routinely allow the instruction of pain management experts, regarding them as reasonably required once all the issues of factual determinations have been made.

I am very conscious of the wide ambit of the district judge's discretion. I am concerned that the judge had a strong view about the case. I am further concerned that in attempting to identify what he referred to as “the real issue”, he may himself have fallen into error in suggesting that the question of what pain the claimant genuinely has was a matter for the province of the orthopaedic experts.

It seems to me that that question whether or not the claimant genuinely feels the pain, given that it is a well established fact that pain can be psychosomatic or psychological in its etiology as opposed to organic, must be a matter for the judge, having heard the orthopaedic evidence, having observed the surveillance tapes, and having heard the applicant give oral evidence. If the judge concluded that the claimant was genuine in the pain he described, then, as Mr Cox identified in his earlier report, undoubtedly it could be regarded that a pain management expert would be of considerable assistance.

Overall, therefore, I have reluctantly reached the conclusion that there is a real prospect of the applicant succeeding in an appeal on the basis that the learned judge had gone beyond his own purview in relation to interfering with the case management decision and the wide discretion of the district judge who, having considered all the evidence, had concluded that a pain management expert could be of assistance and had applied the proper test.

In those circumstances, I will give permission to appeal.