CARE EXPERTS, ALLOWED ON APPEAL: NEW EVIDENCE ALSO ALLOWED

In Ryan v Resende [2018] EWHC 2145 (QB) Mr Justice Goose allowed the claimant’s appeal and granted permission for it to rely on a care expert.  The judgment shows the importance of having evidence to hand to counter an argument that a certain expert is not needed and other experts can provide the necessary information.   The new evidence allowed on appeal played a substantial part in the decision to allow the appeal.

THE CASE

The claimant was seriously injured in an accident. The symptoms were described by the judge

1. 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.

THE CCMC

At the CCMC the Master refused the claimant’s application for permission to rely upon a care or occupational therapy practitioner to value the assistance in the future.

“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.”

THE APPEAL AND THE NEW EVIDENCE

The claimant appealed. He also applied for permission to rely on new evidence, that was letters from the medical practitioners which stated that they were not in a position to assess the therapeutic need and cost which is part of the claimant’s claim.  The claimant also filed statements setting out the problems he was having with his daily living and a preliminary report from a care expert.

THE NEW EVIDENCE POINT

The judge allowed the new evidence to be admitted.

THE APPLICATION TO ADDUCE FURTHER EVIDENCE UNDER CPR 52.21

1. 1. 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 WLR 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.

   2. 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.

   3. 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:

“In my view, much of the evidence which [the defendant] now seeks to adduce could have been put before the judge without any great difficulty…in those circumstances I do not think that this new evidence meets the full requirements laid down in Ladd v Marshall and the subsequent cases to which I have referred. However, this matter comes before the court on an appeal against an interlocutory application, in relation to which a more generous approach may sometimes be appropriate.”

1. 1. 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.

   2. 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.

   3. 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 APPEAL AGAINST THE DECISION TO REFUSE AN EXPERT

The judge, having allowed the new evidence to be adduced, allowed the appeal.

THE APPEAL

1. 1. 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?

   2. 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.

DISCUSSION AND CONCLUSION

1. 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.

2. 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.