WHEN IS A REPORT NOT A MEDICAL REPORT? RELIEF FROM SANCTIONS GRANTED WHEN CLAIMANT FAILED TO SERVE A “MEDICAL REPORT” WITH THE PARTICULARS OF CLAIM

In a judgment given today at Leeds County Court His Honour Judge Gosnell held that a claimant, seeking damages for industrial deafness, breached the rules when issuing by not serving a medical report but serving an “AMR” report.  The judge, however, refused the first defendant’s application to strike the matter out and granted the claimant relief from sanctions.

The judgment was Dalus -v- Lear Corporation (Nottingham) Limited & ATV Automative & Industrial Components (UK) Ltd. A full copy of the report is available here Dalus v Lear Corporation and ATV Automotives

THE CASE

The claimant was bringing an action for industrial deafness against a number of defendants.  The First Defendant applied to strike out the Claimant’s claim because it alleged that the Claimant had failed to serve compliant medical evidence in accordance with CPR 35 and CPR PD 16 paragraph 4.3

THE CLAIMANT’S MEDICAL REPORT

The Particulars of Claim were accompanied by an “AMR” a  report by Audiological Measurement and Reporting Plc.  The  AMR report was not based on an examination of the claimant but was a means of ensuring that audiometric testing was accurate. Audiological Measurement and Reporting Plc (“

THE FIRST DEFENDANT’S ARGUMENTS

The defendant argued that the AMR  report served was not compliant with CPR Part 35 which requires a medical report to be served with the particulars of claim. The AMR report was not a medical report.

“13. The First Defendant submits that the Claimant is obliged by the above provision to serve with his Particulars of Claim a report from a medical practitioner about the personal injuries which he alleges in his claim. It is submitted that the report must be from a medical practitioner and must comply with CPR 35 and the Practice Direction thereto. The First Defendant accepts that the report need only deal with condition and prognosis. The AMR report is deficient in that firstly it is not a report from a medical practitioner and secondly it is not CPR part 35 compliant.

14. The First Defendant contends that when medical evidence is served pursuant to 16PD par 4.3 it ought to be part 35 compliant. The Defendant submits that the AMR report is not part 35 compliant because:

a) CPR 35.2(1) defines an expert as a “person”;

b)The analysis in the report is created by the software not personally by Professor Lutman;

c) Although there is a statement of compliance with the expert’s duties and a statement of truth it is signed on Professor Lutman’s behalf electronically and he usually has not seen the report at all;

d)Any examination is carried out by the Audiologist who does not sign the certificate;

e)An expert is obliged to consider all material facts including those which might detract from their opinions and also provide a range of opinion. Professor Lutman cannot have done this if he has not event read the report or seen the patient.

15. On the basis that the Court finds that there has been a breach of the rules the First Defendant submits that any application for an extension of time to serve CPR compliant medical evidence or relief from sanctions should be refused. Using the well-known three stage test set out in Denton v White [2014] 1 WLR the First Defendant submits that the breach was significant. The medical evidence ought to have been served by 17^th May 2017 and the report of Mr Zeitoun was not served until 18^th April 2018. According to the First Defendant there is no good reason for the breach and an examination of all the surrounding circumstances would militate against relief being granted.”

THE JUDGMENT

The judge rejected the claimant’s argument that the AMR report was compliant, or that there was no need to serve a medical report in these circumstances. He also, however, rejected the defendant’s argument that the action should be struck out because of the failure to comply with the rules. Relief from sanctions was granted up to the date when the claimant did, in fact, serve an appropriate medical report.

“21. Analysis

Whether there has been a breach of a Rule or Practice Direction

Leading Counsel for the Claimant raised an issue rhetorically during his submissions to the Court whether the rules do require the filing and service of a medical report with the Particulars of Claim. He relies on the fact that paragraph 4.3 of the Practice Direction to part 16 CPR appears only to require it where the Claimant is relying on the evidence of a medical practitioner. My personal recollection was that a medical report had always been a requirement and I am reinforced in this view by the County Court Rules as they applied in 1998 where at Order 6 Rule 1 (5) it stated:

“(5) Subject to paragraph (6) a plaintiff in an action for personal injuries shall file with the Particulars of Claim-

• A medical report

• A statement of the special damages claimed”

22. In my judgment the different wording in the Civil Procedure Rules is to cater for those cases where a litigant wishes to make a claim for personal injuries but does not intend to rely on a medical report in order to prove the injuries he contends he has suffered. If he has suffered bruising which resolved after two weeks he may choose to prove this injury by a combination of his own evidence and perhaps photographs reasoning that it would be disproportionate and unnecessary to go to the expense of obtaining a medical report. Both counsel appeared to accept that “medical practitioner” is not defined in the rules but is likely to follow the definition in the Medical Act 1983 which appears to refer to doctors, physicians and surgeons. Both counsel also accepted that neither Professor Lutman or the audiologist who did the audiometric tests would qualify as medical practitioners for the purposes of the Practice Direction.

23. A submission was made by Leading Counsel for the Claimant that it may be possible to prove an injury claim or an element of an injury claim by the report of an expert who is not a “medical practitioner”. I accept that psychological conditions can be proved by the report of a consultant clinical psychologist and in a soft tissue injury claim the Practice Direction at 16PD par 4.3A(1)(d) envisages that the report of a physiotherapist would be sufficient. If a party chooses to prove his injury claim by the use of an expert who is not a medical practitioner then in my view he is required to serve that report with his Particulars of Claim as he is essentially relying on that report in place of a report from a medical practitioner. I also accept that a conventional expert report from Professor Lutman might fall into this category as I accept he is qualified to act as an expert in the assessment of NIHL and has given evidence before the courts on a number of occasions but he is not technically a medical practitioner. I do not accept that merely because Professor Lutman is not technically a medical practitioner that his report would not be caught by the requirement in paragraph 4.3 and the Claimant would be free to issue proceedings without serving any expert evidence and merely wait for the court to timetable exchange of expert evidence in due course.

24. My reason for reaching this conclusion is that 4.3 is intended to compel claimants to serve a medical report with the Particulars of Claim (as has been the position for decades) limited to the issue of condition and prognosis. All of the Pre-Action Protocols dealing with personal injury claims (including the Protocol for Disease and Illness claims) envisage the disclosure of at least some expert evidence as part of the protocol prior to the issue of proceedings. It cannot be right that a party could withhold disclosure of expert evidence intended to prove personal injury merely because the report was not from a medical practitioner. It was accepted by both counsel during the hearing that the obligation under paragraph 3.4 was to disclose a condition and prognosis report[1] but of course in NIHL claims the expert report normally deals with the issue of causation also, in particular the quantification of how much of a claimant’s hearing loss is likely to be noise induced.

25. I do not accept the submission made by Leading Counsel for the Claimant that the purpose of paragraph 4.3 is only to provide information to the Defendant about the nature and extent of the claim being made not to direct or constrain the evidence ultimately to be relied on by the Claimant. Firstly, the Practice Direction does not state that the purpose of the rule is only to provide information and secondly the Particulars of Claim are intended to provide that information in particular the section normally entitled “Particulars of Injury”. In my view, the purpose of paragraph 4.3 and its predecessors was to compel the Claimant to disclose to the Defendant some corroborative evidence from a doctor or surgeon intended to prove that the Claimant had indeed suffered some injury or illness as a result of the Defendant’s breach of duty (although it was not strictly necessary that the report should deal with causation in claims such as clinical negligence claims).

26. The Claimant’s submissions are of course consistent with their approach to this litigation and the use of the AMR report. The AMR report is clearly intended to be disclosed to the Defendant’s insurer prior to litigation and in some cases, this may result in settlement of the claim without the need for either proceedings or further expert opinion. There appears to be a tacit acceptance however that the AMR report will not be the only expert evidence the Claimant intends to deploy at trial because he appears to accept that either a single joint expert will be appointed (dealing with exactly the same issue that the AMR report dealt with) or that each side will instruct their own ENT experts. There is some support for this approach in the Civil Justice Council report referred to by Mr Perry and set out in paragraph 38 of his statement. The report supported the early disclosure of a reliable audiogram but under the section Expert Evidence the following appears:

“5.2 In order to make a claim, a claimant who believes he or she may have suffered NIHL will be required to obtain medical evidence to show the extent of the NIHL.

5.6 An Ear Nose and Throat (ENT) Consultant may be instructed to prepare a medical report on the results of the audiogram.

5.11 There are perfectly valid reasons why the evidence of an ENT consultant would be commissioned in cases which are likely to lead to litigation…..Both groups accept that where liability is in dispute an ENT report is likely to be required…..

5.12 The proposal of the working party is therefore that in a case where the Defendant admits breach within the protocol procedures and does not then dispute causation or limitation, the claimant will produce the report of an audiologist as the basis for the settlement negotiations rather than incurring the additional cost of an ENT surgeon’s report.”

27. The approach of the Working Party appears to accept that there may be cases where the disclosure of a reliable audiogram may result in settlement of the claim without the need for proceedings. The AMR report is a similar resource, a reliable audiogram with the appropriate statistical calculations provided in addition. The Working Party appears to concede however that where causation or limitation is contested the report of an ENT surgeon is likely to be required. In my experience, proceedings are normally issued because either the Defendant has indicated an intention to contest causation, breach of duty or limitation or at least has failed to concede such issues within the protocol period. The Working Party appears to envisage the need to obtain the report on an ENT expert at this point.

28. It is no part of my decision on this application to consider the reliability or accuracy of the AMR report. I have to confess some discomfort however about the concept of relying on a report for the purposes of issuing court proceedings, knowing full well that if the proceedings are contested another type of expert will be instructed to cover exactly the same ground as the original report which means that permission to rely on the original report is likely to be refused. That, however would be a case management issue for a Judge later in the proceedings.

29. Notwithstanding my unease the issue in this application is whether there has been any breach of a Rule or Practice Direction. I have accepted already that it is possible to comply with paragraph 4.3 by service of an expert report from someone other than a medical practitioner. In my view however, the report in question must comply with the CPR and Part 35 in particular. I do not accept the submission made on behalf of the Claimant that paragraph 4.3 does not require a CPR compliant report under part 35. CPR 35.2 (1) makes it clear that:

 “reference to an “expert” in this Part is a reference to a person who has been instructed to give or prepare expert evidence for the purpose of proceedings”.

Preparing a report which is intended to be served with the Particulars of Claim (even if it is not intended to rely on it at trial) is still expert evidence prepared for the purpose of proceedings. It is clear that part 35 is therefore engaged. I accept that the AMR is deficient in a number of respects and does not comply with Part 35 and the Practice Direction thereto. The deficiencies are set out in paragraph 14 of this Judgment and I accept all the criticisms made by the Defendant are accurate. The most serious breach is the fact that the statement of truth and compliance is a computer-generated signature and Professor Lutman has not actually read or seen any of the report before his signature is automatically added. I therefore find that there has been a breach of the Rules and Practice Directions by the filing and service of the AMR report with the Particulars of Claim.

30. Should the claim be struck out?

I should first of all record that this is not a claim where a party has breached an order which already carried the sanction of striking out of the claim. The court has to exercise a discretion about which sanction is appropriate bearing in mind that there may be alternatives to striking the claim out under CPR 3.4[2] . Both counsel agreed however that on an application such as the present one to strike out the claim for breach of rule or order the provisions of CPR 3.9 have a direct bearing even though no particular sanction is contained in paragraph 4.3 of CPR 16PD[3].

31. The correct approach was identified by the Court of Appeal in Denton v White Ltd [2014] EWCA Civ 906 which recommends a three-stage test which I intend to adopt in this case. The first consideration is to identify and assess the seriousness or significance of the breach. In one sense the breach is serious in that the non-compliant expert report was served in May 2017 and the replacement compliant report was not served until April 2018 some eleven months later. Leading Counsel for the Claimant sought to argue that the breach was not significant because the Defendant was no worse off, having received a compliant ENT surgeon’s report which came to a virtually identical conclusion as the non-compliant report. I accept this is a relevant consideration at the third stage but not, in my view, at this stage. It is relevant however that the application was not made until February 2018 when the issue of non-compliance was raised formally.

32. The second stage is to consider the reason why the failure or default occurred. In this case the failure to comply with the rules was caused by the use of a report part of which was computer-generated. This was intentional on the part of the Claimant’s solicitors in the sense that it was a policy they would have liked to pursue more generally in NIHL cases. I accept however the motivation was not to breach the CPR but to provide a cheaper and more convenient method of assessing the degree of NIHL without going to the expense of an ENT report. I have some sympathy with the underlying intent but have found that once it was clear the claim would not settle without proceedings a conventional Part 35 complaint report should have been obtained.

33. The third stage is to consider all the circumstances of the case to enable the court to deal justly with the application paying particular regard to subparagraphs a) and b) as set out in rule 3.9 above. I accept it is a relevant consideration that the CPR compliant report has produced an almost identical result to the non-compliant report and so neither party is better or worse off as a result of the breach of the Practice Direction and remedy of the breach thereafter. The delay of 11 months (partly due to the delay in identifying the alleged breach) does not appear to have prejudiced either party. If the case is struck out I accept the Claimant may categorise this as a windfall defeat of an otherwise valid claim. If the claim is not struck out and time for compliance with paragraph 4.3 CPR16PD is extended until April 2018 the First Defendant is still capable of defending the claim on any grounds available to it. I accept that it is not really an adequate remedy for the Claimant to have the right to sue his solicitors as they may be aware of weaknesses in his case which this Defendant is unaware of.

34. Whilst I do not agree with the way the Claimant’s solicitors have sought to interpret the rules I accept their motivation in using the AMR report was to attempt to find a more proportionate way of providing expert evidence in NIHL cases. To that extent they were attempting to conduct litigation at proportionate cost although I think they were misguided in not obtaining a conventional medical report before issuing proceedings. Although this dispute has meant that the litigation has not been conducted efficiently it is sometimes necessary to put an issue before a court for a decision, particularly where the issue is new, and it may be relevant to a number of similar claims either now or in the future. This application has been heard by a Designated Civil Judge with the intention that it should be determinative of the issue in the future, subject of course to any successful appeal or decision by the Higher Courts. In my view, it would be a harsh application of the rules to strike out the particular case which was chosen as one of the first ones to be put before a court just because the interpretation of the rules favoured by the Claimant did not find favour with the Judge. Taking into account all the relevant circumstances I have decided it would not be just or proportionate to strike out the Claimants’ claim. I intend to extend the time for compliance with CPR 16PD par 4.3 until the day after service of Mr Zeitoun’s report which as I understand it would be 19^th April 2018. Counsel for the Third Defendant was concerned at the hearing that this would in some way bind the court’s hands in terms of giving permission to rely on expert evidence at trial but I take the view that it does not because I have merely extended the time for filing and service of the report, not given the Claimant permission to rely on it at trial.”

[1] Duce v Worcester Acute Hospitals NHS Trust [2014] EWCA Civ 249

[2] Biguzzi v Rank Leisure Plc [1999] 1WLR 1926

[3] Waltham Chalet Park Ltd v Tallington Lakes Ltd [ 2014] EWCA Civ 1607