Ryan v Resende

This is an appeal from the decision of Master Davison on 27 March 2018 in a costs and case management conference hearing. One of the orders made by the Master concerned an application by the appellant for permission to call expert evidence upon care and occupational therapy which he refused. Further directions were also made in case management for a trial in 2019. As part of those directions, the parties were given permission to rely upon written reports from experts in six different areas of speciality. The refusal to permit expert evidence on care and occupational therapy has led to his appeal.

Permission to appeal the decision by the Master was granted by a single judge. A further application pursuant to CPR 52.21(2)(b) to admit evidence that was not before the lower court has also been made. The decision upon whether to grant or refuse this second application was reserved to this court by the single judge.

The background to this appeal lies in the claim for damages for personal injury caused as a result of a road traffic accident which occurred on 25 October 2014. Liability is not in dispute and judgment was entered against the respondent on 27 March 2018 as part of the order made by Master Davison. Accordingly, the outstanding issues between the parties concern both causation and the assessment of damage.

The appellant who was aged 46 at the time of the accident suffered multiple severe injuries. They included a head injury with prolonged post-traumatic amnesia as a result of bilateral contusions to the frontal lobes of the brain and intracranial haemorrhaging. He suffered from a number of orthopaedic injuries, including to the cervical and thoracic vertebra, a serious chest injury from multiple fractures to the ribs as well as to the sternum. He suffered also a serious injury to his left shoulder, including a comminuted fracture of the left scapula and a displaced fracture of the left clavicle and an acute renal injury. It is not necessary for the purposes of this appeal to refer in further detail to the orthopaedic injuries.

It is not in dispute that the appellant continues to suffer from the effects of his head injury. The appellant contends that he has complex cognitive behavioural difficulties with hyper-sensitivity to light and noise, and fatigue. Also he has difficulty relating to his hearing and, occasionally his sight. His attempts to return to work were frustrated and he was medically retired from his pre-accident employment. The appellant's claim is that his continuing difficulties have brought to bear a considerable burden upon his wife and family to assist him with his daily living. The extent of these difficulties and the consequence upon his life are very much in issue for trial.

In the Cost and Case Management Conference hearing on 27 March 2018, the Master granted permission for the parties to rely upon expert reports in the disciplines of Neurology, Neuropsychology, Orthopaedic Surgery, Neuropsychiatry or Psychiatry, Audio- Vestibula and Ophthalmology. On behalf of the appellant it was submitted that there should also be expert evidence from a care or occupational therapist practitioner, to assess the value of any assistance in the future for the appellant. The Master, in refusing this application, accepted that therapeutic input was not in dispute, although the cost and its extent was. The Master concluded that he did not consider that an expert was necessary to value the cost of the therapy, because it would be possible for it to be inferred from existing or previous assistance. Further, he considered that there were experts from other disciplines who would be able to comment. Applying his duty to restrict the use of expert evidence, consistent with CPR 35.1, the application was refused. Although I have not seen a transcript of the order, the parties in this appeal have agreed the summary which is contained within tab 1 of the Appeal Bundle.

The appellant raises seven grounds of appeal for which leave has been granted. Essentially, however, there are two substantive grounds:

The appellant's application to rely on further evidence under CPR 52.21(1)(b), is to rely upon a letter from each of the appellant's Consultant Neurologist and Consultant Clinical Neuropsychologist. Dr. Heaney, the Consultant Neurologist has provided expert reports on behalf of the appellant and his evidence is to be relied upon at trial. Dr. Jones, the Clinical Neuropsychologist is also the appellant's expert witness upon his area of expertise. Their letters, dated respectively 14 April 2018 and 16 April 2018, confirm that neither are in a position to assess the therapeutic need and cost which is part of the future loss claim.

Further, there is a letter, with provisional costing in respect of therapeutic care from Rachel Wilson. The appellant has also provided an additional witness statement together with a similar statement from his wife, setting out the continuing difficulties he has with his daily living. This witness evidence, which was not placed before the Master, is plainly to be relied upon at trial.

The appellant submits that the witness evidence and the two letters as well as the letter from Rachel Wilson should be admitted before this court and considered as part of a rehearing of the decision upon the discreet point of appeal. Without this permission, this court will be entitled only to conduct a review of the decision of the Master which would not include the material unseen before the making of the decision being appealed. See CPR 52.21(1).

On behalf of the respondent, the application for the new material is resisted. It is argued that this material is not evidence that without reasonable diligence could not have been produced before the Master. Further, it is argued that the decision was an entirely appropriate one for the Master to make, to decline permission on the material put before him was within the bounds of his discretion. Should the application be successful to admit new material, then the respondent submits its own material from Dr. Bach a Neuropsychologist, dated the 28 April 2018 and Dr Bird, a Consultant Psychiatrist dated the 21 May 2018. The effect of this additional evidence is that each of the respondent's experts who will be produced for trial consider themselves able to comment upon, without valuing the need for therapeutic care as part of the future loss claim. They also dispute the need for therapeutic care. Also the respondent placed before the court evidence from its orthopaedic expert, but little turns upon this area of expertise for the purposes of this appeal.

Both the appellant and the respondent have submitted, by their respective counsel, Mr. Witcomb, Queen's Counsel and Mr. Vandyck, detailed Skeleton Arguments upon the appeal and the application. I have considered these in addition to the oral submissions made in this appeal with care.

Before deciding the issue on appeal, it is necessary to consider the application by the appellant to receive evidence which was not before the Master. In assessing this application, I have in mind the Overriding Objective of the Civil Procedure Rules, as well as the principles in Ladd v Marshall [1954] 1 W.L.R. 1489 which was repeated and affirmed in Hamilton v Al Fayed (No. 4) [2001] EMLR 15. Whilst it is not suggested that the further evidence relied upon by the appellant is not credible, the appellant must argue that this evidence could not have been obtained with reasonable diligence for use at the hearing. It is submitted that the appellant was not aware that this was a real issue between the parties in case management, such that further letters from Dr. Heaney and Dr. Jones were not obtained. The respondent contends that it was made perfectly clear to the appellant in correspondence and in the Allocation Questionnaire that this area was controversial; the respondent had stated clearly that it did not consider occupational therapy evidence was necessary.

The second factor to be considered on the authorities is whether the evidence would probably have an important influence on the result of the case, even if not decisive. The respondent accepts that this may well follow the merits of the appeal itself. Should this court conclude that the expert evidence to assess the therapeutic future costs is reasonable, then this factor is satisfied. However, it is argued by the respondent that the medical evidence does not establish that any therapeutic care is needed, such that the expert report and value the cost of such costs is otiose.

The necessity to ensure that all evidence, reasonably available to the parties, is brought before the court at the decision-making stage is particularly important in appeals against final hearings. However, the necessity for a more generous approach being sometimes more appropriate in interlocutory applications is clearly recognised. In the case of Tajik Aluminium Plant v Ermatov & Ors [2008] EWCA Civ 54, it was stated by the Court of Appeal at para.19:

Therefore, the threefold threshold test of Ladd v Marshall in the context of the Overriding Objective of the Civil Procedure Rules permits a broader approach in the circumstances of an interlocutory appeal. Accordingly, whilst I am satisfied that the appellant could have obtained the information within the letters of Dr. Heaney and Dr. Jones before the Cost and Case Management Conference before Master Davison, the fact that they did not should not be fatal to the application where the material is significant in relation to the interlocutory appeal in this case. The Master considered that the existing experts would be able to assist the court and provide evidence of the need for future therapeutic care and its value. On behalf of the respondent, it was argued before the Master in a note before the hearing:- "Insofar as further rehabilitative therapies are required, there is no reason to suppose that the experts in the existing six areas of expertise will be unable to deal with the same." See tab 17 Appeal Bundle at p.106.

Putting that contention in context in a straightforward case, the courts are well used in case management to reducing expert evidence so as to permit the court to infer from past care and also the assistance of medical reports what sort of continuing and future care may be necessary and providing an estimate by way of inference and reaching a value of that claim in terms of damages. However, in this case, a more complex case in terms of the injuries caused, and also the contended for continuing loss, such an approach may not be so appropriate. The supposition of the respondent and the Master's assumption were not, in my judgment, entirely correct. There is further evidence, being the subject of the appellant's application is a real significance to the decision made by the Master.

In my judgment, it is appropriate for this further evidence to be received by this court pursuant to CPR 52.21(2)(b). The evidence is credible and it relates to a substantial issue between the parties for trial. The fact that this evidence could have been obtained by the appellant before the appeal decision was made, is less significant in an appeal against an interlocutory decision made in case management. Therefore. I grant the application to admit this evidence. It follows that the respondent's own further evidence, also not placed before the court but which follows the appellant's application, should also be received by this court. In the circumstances, this appeal proceeds by way of a rehearing upon the discreet point relating to the application for permission to rely upon expert evidence from care or occupational therapist experts.

The appellant submits that whilst this court should be slow to interfere with the decision of robust case management by the court below, the value of this claim and the significance of this evidence is such as to allow this appeal and grant permission, contrary to the decision of the Master. Further, the appellant submits that the Master's reasoning was wrong. Having accepted that there was a live issue relating to the necessity for future therapeutic care in respect of which the cost would need to be assessed by the court, it was an incorrect assumption that the other experts should be able to assist the court upon this. Notwithstanding the duty to restrict expert evidence under CPR 35.1, the court would not have the evidence needed to make proper assessment. The appellant relies upon the clearly expressed views of Dr. Heaney and Dr. Jones, the relevant experts appointed by the appellant for trial, that they do not have expertise in assessing the therapeutic need and cost for the appellant. In the circumstances, the appellant submits that the expert evidence from an Occupational Therapist is reasonably required to resolve a significant issue for trial. How else, argues the appellant, could the court assess the value of this claim for future loss on any conventional or discounted basis?

On behalf of the respondent, it is argued that the decision of the Master was robust and consistent with proper case management. Experts in ancillary fields would be able to give their opinions as to the continuing and future loss and what, if any, type of assistance should be given. The assessment of value of any such loss should be based upon past cost. The respondent relies upon its own expert evidence from Dr. Bach and Dr. Bird who feel able to comment upon this aspect of the case, whilst perhaps not being able to specify the precise costs. Further, the respondent's experts dispute that the therapy being claimed is necessary at all and that it serves to confirm a "sick role" in which the appellant finds himself. The respondent argues that the medical evidence does not establish the need for therapeutic care in the way claimed and therefore, the expert care or occupational therapist evidence is not reasonably required.

I bear in mind the necessity to be slow to interfere in the decision-making of the Master in exercising the court's case management duties. Further, the duty to restrict expert evidence, which is expressly provided for within the Civil Procedure Rules, is an important one. In treating this appeal as a rehearing under CPR52.21(1)(b), I am satisfied that it is in the interest of justice, having granted the application to receive evidence which was not before the lower court to hold a rehearing rather than a review, of the discreet point in this appeal.

This is a substantial claim for damages which, on the basis of the appellant's evidence, potentially has significant claims for ongoing and future therapeutic costs. The issue as to whether the medical evidence establishes the need for therapeutic care is central to the trial and not for this court to determine. Although the Master granted permission for the parties to rely upon written experts' reports and a number of other disciplines, the refusal in respect of care and occupational therapy expertise was based on the belief that other experts could provide the relevant evidence. Although the respondent's experts express a willingness, this may not include expertise on the costings involved. Indeed, Dr. Bird on behalf of the respondent expressly states his reservation. The appellants' similarly qualified experts are clear: they cannot provide the costing necessary. In such circumstances, the court will be left in a position without clear and expert evidence upon an important aspect of the case. In the circumstances, I am satisfied that expert evidence upon care and occupational therapy is reasonably required at trial by a single expert. It follows, therefore, that I grant the application to receive further evidence and allow the appeal, and to vary the order made by the Master. I invite the parties to submit an agreed order.

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