Hague v Rexam Glass (Barnsley) Ltd. [2006] EWCA Civ 377

[2006] EWCA Civ 377

Case No B3/2005/0962 and (A)

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM Sheffield County Court

His Honour Judge Moore

SE213809

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 05/04/2006

Before

LORD JUSTICE WALLER

LORD JUSTICE LONGMORE

LORD JUSTICE LLOYD

Between

HagueAppellant

Rexam Glass (Barnsley) LtdRespondent

Andrew Lewis (instructed by Thompsons, Solicitors) for Appellant

Patrick Limb (instructed by Ricksons, Solicitors) for Respondent

Hearing Hearing dates : 15th March 2006

Judgment

Introduction

[1]This is an appeal from a decision of His Honour Judge Moore sitting in Sheffield given on 12th April 2005. The facts which give rise to the appeal put shortly and starkly are these. The judge decided by way of preliminary issue that the appellant did not have vibration white finger (VWF) or hand arm vibration syndrome (HAVS) as it is now more accurately called. He did so having heard only the appellant give evidence, and no oral medical evidence. He found that the appellant had none of the symptoms of HAVS. He further said that he knew that if the appellant’s expert had heard the appellant’s evidence he would not have continued to support the appellant’s case that he had HAVS.

[2]The solicitors acting for the appellant have since the trial shown a transcript of the appellant’s evidence to that expert and they say that the expert would on the basis of that evidence still have supported the appellant’s case and wish to put that evidence in as fresh evidence in the Court of Appeal. They assert that the appellant had an unfair trial being prevented as they would say from calling his expert to establish his case.

[3]Mummery LJ when granting permission to appeal said “the decision made without hearing oral medical evidence relevant to the preliminary issues is a cause for concern and is sufficient to persuade me that there is a compelling reason for the hearing of this appeal by the full court.” On the above bare facts I can understand Mummery LJ’s concern.

[4]It is however the respondents’ case that the above facts do not represent the whole picture, and on a proper analysis of what occurred and on a proper analysis of what the appellant’s expert actually now says it can be seen that the trial process was fair and any cause for concern is dispelled.

Facts in more detail

[5]The appellant (Mr Hague) brought an action claiming that he had contracted VWF or, as it is now called, HAVS. He did so, he alleged, while working for the defendants now respondents (Rexam). He had a report from a consultant vascular surgeon Mr Cuschieri to support his case. That report did not (it is important to note) spell out for the reader the classic symptoms of VWF or HAVS. It did however make clear that HAVS was one of those conditions where the description supplied by the patient as to his symptoms was the only basis on which a diagnosis could be made. The report seemed to assume a knowledge on the part of the reader as to what the symptoms of VWF or HAVS were. To the initiated the description which the appellant had given (referring to “demarcation”) did indicate a classic symptom:- “The colour changes which are circumferential are also demarcated and involve the whole of the index, middle, ring and little finger of both hands. Such episodes of Vasospasm last for about 30 minutes, attacks occurring both in winter and in summer, though they are more frequent and more severe in winter.”

[6]The defendants also had a consultant vascular surgeon’s report from Professor Charlesworth. That report again did not set out to identify classic symptoms. Its conclusion was:- “On the balance of probability I think it is more likely that Mr Hague’s symptoms are a side-effect of the medication he is taking rather than vibration white finger.”

[7]The two experts had produced a joint report recording their disagreement in the following terms :- “5. RJC (Mr Cuschieri) found reduced sensation to cotton wool in the finger pulps and Phelan’s test for carpal tunnel syndrome was positive. Mr Hague told DC (Professor Charlesworth) that sensitivity to light touch and pinprick was reduced over the pulmar and dorsal surfaces of all the fingers, as was sensitivity to vibration. 6. On the basis of a history of an exposure to vibratory tools, circumferential and well demarcated blanching, RJC believes that Mr Hague was VWF and he puts him at 3L4 3R4 for vascular and 2 SN on the Stockholm scale. 7. DC disagrees, he does not think that Mr Hague has VWF because:(a) in all probability Mr Hague’s exposure to vibration at Rexam Glass was small and didn’t constitute a risk of VWF. It is rare for VWF to be reported in men whose exposure is less than 2m/sec². It is unknown for VWF to occur in men whose exposure is less than 1m/sec².

(b) Mr Hague did not go to see his GP until after he had been to see his solicitors about making a claim.

(d) The clinical signs, the loss of sensitivity, do not follow a pattern seen in VWF.

(e) The hyperaemic response to a period of ischaemia was the same before and after exposure to cold.” (a) in all probability Mr Hague’s exposure to vibration at Rexam Glass was small and didn’t constitute a risk of VWF. It is rare for VWF to be reported in men whose exposure is less than 2m/sec². It is unknown for VWF to occur in men whose exposure is less than 1m/sec². (b) Mr Hague did not go to see his GP until after he had been to see his solicitors about making a claim. (c) The onset of symptoms is not typical of VWF. (d) The clinical signs, the loss of sensitivity, do not follow a pattern seen in VWF. (e) The hyperaemic response to a period of ischaemia was the same before and after exposure to cold.”

[8]Originally Mr Hague’s action was one of six tests cases but by the time of trial the test cases had been reduced to two. It is important furthermore to place these test cases in their context.

[9]HAVS has been the subject of considerable litigation before the courts. A passage from the judgment of Smith LJ in Montracon Ltd v Whalley

[2005] EWCA Civ 1383

, helpfully explains the nature of HAVS and the context in which HAVS claims have come to be made. “Hand Arm Vibration Syndrome and Vibration White Finger 5. HAVS is a complex manifestation of physical damage caused by the prolonged use of vibrating tools. It was first observed over 100 years ago, when it was reported that men using vibrating tools for many years developed a form of gangrene of the finger tips. That was an extreme form of the condition. Far more commonly, the workman’s fingers would, episodically, go white and feel numb. After a while, they would regain their usual colour and feeling would return. This process would be accompanied by a tingling sensation like pins and needles. The condition became known as vibration white finger (VWF). It was also known as Raynaud’s Phenomenon, after the doctor who had first described episodic finger blanching of constitutional origin. White finger episodes are understood to be caused by temporary interference with the blood supply to the fingers due to vasospasm. However, in recent years, it has been realised that the effects of vibration are rather more complex than had hitherto been thought. It is now accepted that, in addition to episodes of white finger, vibration can cause damage to the nerves in the fingers; this is known as the sensorineural effect. Such damage gives rise to tingling and pins and needles and also to loss of dexterity, continuously not episodically. It is also accepted that vibration can cause musculo-skeletal problems, such as loss of grip. Because of these various manifestations, the condition is now called HAVS rather than VWF. The term VWF is now applied only to the vascular component of HAVS, the episodic whitening of the fingers. Doctors examining a patient or claimant will look for evidence of the various possible components, which may be present in any combination. 6. In order to introduce an element of consistency of description of the symptoms of HAVS, doctors specialising in the condition have devised two different scales by which the severity of the condition can be described. These are the Taylor Pelmear Scale, which deals only with the vascular symptoms and the Stockholm Workshop Scale which deals with vascular and sensorineural effects. It is not necessary for the purposes of this judgment to explain the operation of the scales in detail. Difficulties of Diagnosis of HAVS in the Context of Litigation 7. The diagnosis of HAVS often gives rise to difficulty. There are several reasons for this. The first is that it is very rare indeed for a patient or claimant to suffer an attack during the course of a medical examination. Episodic attacks of finger blanching are precipitated by cold and do not usually occur in the warm environment of a consulting room. Unfortunately, there is no test which can prove whether or not a claimant does in fact suffer from these intermittent episodic symptoms. The doctor is dependent upon the patient’s or claimant’s description of his symptoms. This in turn is dependent upon the perception of the claimant and his use of language. 8. Difficulties of diagnosis are compounded by the variability of the manifestations of the vibration-induced condition. As I have said, there may be more than one component of HAVS present in the same person. Even with the vascular symptoms alone, there is no history of onset which can be regarded as typical to the extent that it is diagnostic. Symptoms of the vibration-induced condition do not begin to manifest themselves for several years after exposure begins. That latent period varies greatly not only according to the severity of the exposure but also according to the personal susceptibility of the workman. Indeed, some workmen are exposed to very severe vibration for many years and do not develop symptoms at all. Others can develop symptoms after only a few years’ exposure. In general, it can be said that young people are more vulnerable to developing the condition than older ones, women are more vulnerable than men and people who are light in weight are more vulnerable than those with a heavy frame. 9. Another difficulty arises because vascular symptoms of episodic whiteness and numbness, virtually indistinguishable from the vascular symptoms caused by exposure to vibration, occur naturally in about in about 5% of men and 15% of women in the general population. Unfortunately, there is no clear way in which the occupational condition can be distinguished from a natural occurrence, although a history that the condition was first noticed in those fingers in closest contact with the vibrating tools will tend to support a diagnosis of the vibration-induced condition. Thus, the terminal phalanges of the index and middle fingers of the dominant hand may well be affected first. Over a period of time, the condition may spread to other fingers and further up the fingers. It may spread to the non-dominant hand and eventually affect even the thumbs. In general, the constitutional condition affects all the fingers of both hands equally. However, this difference is by no means diagnostic. Vibration can cause bilateral symptoms from the start. 10. There are also difficulties in attributing sensori-neural and musculoskeletal symptoms to vibration as these symptoms can occur naturally as the result of all manner of constitutional conditions. Accordingly, for all these reasons, diagnosis of the occupational condition is difficult. It depends upon three factors: first a history of exposure to vibration sufficient to cause a risk of development of the condition; second, a clinical history and description of symptoms which is consistent with one or more of the components of HAVS; and third, the absence of any constitutional explanation for the symptoms complained of. 11. Yet further difficulties of diagnosis have arisen in recent years because it has become well known among groups of working men that compensation is available for HAVS. Rightly or wrongly, the insurance industry believes that it is faced with many fraudulent claims made by workmen who do not have the condition at all but who have learned from others what the symptoms are and how to give a convincing account. Doctors examining such claimants seek to be astute to such deception. They consider that, although a deceitful claimant might have learned most of what he should say, he does not know all the answers and might be revealed as false if questioned closely about his symptoms. Any facet of the description which does not tally with what is expected may lead the doctor to conclude that the claimant is fabricating his symptoms. In this group of cases, the employers were deeply suspicious of the truthfulness of all the claimants. All claimants were questioned very closely by the doctors at examination and by counsel during the trial about the appearance of their hands during an attack and about the ways in which they claimed that the condition affected their daily lives.”

Difficulties of Diagnosis of HAVS in the Context of Litigation

[10]There has been a tendency in the interests of saving expense and court time to have cases concerned with HAVS tried in groups by certain judges with test cases and preliminary points being tried. Judge Moore who was the trial judge in this case plus counsel who were involved had been involved in much of the previous HAVS litigation. The judge had considerable experience in trying cases concerned with VWF or HAVS. He had tried Montracon v Whalley. That was a case in which the expert for the claimant having heard the claimant give evidence and having doubts about his veracity, changed his mind as to whether he thought the claimant had VWF. HH Judge Moore rejected the views of both medical experts and found that the claimant suffered from VWF. His decision was upheld by the Court of Appeal; he also tried Doherty v Rugby Joinery where his decision to reject the claims of eight claimants was upheld as to four and reversed as to four

[2004] EWCA Civ 147

[11]Directions had been given for the trial of these two test cases including permission for the experts to give oral evidence. Those directions had not been made by Judge Moore. The two sides had also agreed a programme for the trial of the two test cases, which involved a number of issues. The time for the trial was agreed as 5 days. The programme involved commencing on the Monday 11th April 2004 and the medical evidence being called on the Friday. That programme had not been agreed with the court or by Judge Moore although the court had been notified of the parties’ agreement, but the effect would have been to have each of the claimants give evidence in the absence of the medical experts, and for the experts to give evidence later.

[12]The case came on for trial on Monday 11th April 2005 before Judge Moore. When this trial commenced, he very laudably and properly had in mind the objectives of the CPR including ensuring that court time was not wasted with considering irrelevant points if there was a short point, which was determinative of the case. Thus it was that he expressed the view at an early stage of Mr Lewis’ opening in the following terms:- “You see, one of the things that I have learned doing these cases is that evidence in chief tells one a lot. This is one of those few cases where the judge is in as good a position as the doctors, if not better, because I find that the vast majority of practitioner doctors, by which I mean vascular surgeons who have over the years had patients to operate on, have inevitably worked on the basis that when their “patient” (in inverted commas) is referred to them by the GP there is something wrong with the patient. What has emerged, I am afraid, in HAVS work is that there is a lot of exaggeration, malingering and lying, and the vascular surgeons are not trained for that.”

[13]That led him then to say:- “But anyway the fact is that there is no supporting evidence. The question I am getting round to is this, in order to decide the issue in Mr Hague’s case, do I need to hear the doctors?”

[14]The judge then gave Mr Lewis the opportunity to consider whether he was content for the trial to proceed on the basis that he would hear Mr Hague’s evidence as to whether he had VWF or HAVS without hearing the doctors’ evidence. Mr Lewis having considered the matter with his instructing solicitors was content for Mr Hague to be called to deal with this aspect but was not prepared to concede that medical evidence might not be necessary. The interchange with the judge went as follows:- “Mr Lewis: In respect of the case of Hague, again the matter proceeds. I accept of course that your Honour can deal with any of the hurdles the claimant has to overcome in a case of this nature in whatever order the court thinks is appropriate, bearing in mind the court’s case management powers, and I accept of course if medical causation is a hurdle that the claimant is not going to overcome, then there would seem little point in dealing with that hurdle last. I therefore propose calling Mr Hague to give his evidence on exposure and symptomology. Judge Moore: Yes. Mr Lewis: At this stage I maintain my stance that the court would benefit from hearing from [the medical experts]. Judge Moore: Why do we not review that when I have heard Mr Hague’s evidence in chief and cross-examination? Mr Lewis: That is exactly what I am proposing because I think at that stage the court will be in a position to determine whether it is necessary to hear from Charlesworth and Cuschieri orally or whether the court can simply read their reports. Judge Moore: I agree with you. Good. . . . . .”

[15]There was thus a consensus between Mr Lewis and the judge that the question whether it was necessary to have the medical experts called could be reviewed once the appellant had given his evidence. It is again important to stress that both counsel and the judge were familiar with HAVS, and were aware of the importance in the assessment of whether a claimant had HAVS of the description that the claimant gave of his symptoms.

[16]There were of course before the court the various reports from Mr Cuschieri and Professor Charlesworth including the joint report. It is important in the context of one of the points that arises on the appeal to note that Mr Cuschieri and Professor Charlesworth examined the appellant with a view to diagnosing whether he had sensori-neural symptoms consistent with him having HAVS but the concentration was on his vascular symptoms and there was no suggestion from either that he might be suffering from sensori-neural symptoms caused by having HAVS quite independently from any vascular symptoms. The joint report quoted above makes that clear.

[17]Mr Hague gave evidence. Some of the evidence he gave was in answer to questions by the judge whose expertise in this area was evident. The judge gave Mr Hague every opportunity to describe his symptoms, and indeed since he the judge had asked many questions he gave Mr Lewis latitude in the questions he could put to Mr Hague, and Mr Lewis’ expertise in this area was also evident.

[18]It was not as I read the transcript ever being suggested to Mr Hague that he was lying about his symptoms or that he was malingering. But of course the fact that someone suffers vasculatory problems does not establish that they suffer from HAVS. What many of these cases are about is distinguishing, in cases where complainants describe vasculatory problems, between those cases where someone may have come to hope that their symptoms will support a claim against their employers, but which in fact do not, and those that do. The questions from the judge and the questions from Mr Lewis concentrated on the appellant’s vascular symptoms, and the question whether the symptoms he described were consistent with HAVS. The appellant gave some evidence of sensori-neural problems referring to “letting things drop” “judging the strength of his grip” describing how these symptoms occurred “mainly in cold weather” [see page 118], but the judge and Mr Lewis were concerned to obtain from the appellant a detailed description of his vascular symptoms those being the basis on which Mr Cuschieri had diagnosed HAVS.

[19]In two major respects the appellant described symptoms which the judge thought (and indeed no one disputes) were contra indications to HAVS at least as being caused by vascular problems. First the appellant described how after an attack when his fingers turned white “there is a gradual return of colour in my fingers” which he said took some “30 to 35 minutes” [page 121] for the fingers to be restored to normal, whereas the judge’s view was (and again in this it is accepted he was correct) that if anyone suffered white fingers as a result of HAVS, the return to normal must be spontaneous. As the judge was to explain in his judgment his experience showed that the effect of HAVS if it is to produce white fingers is akin to a kink in a hose pipe and thus if the kink is released the flow of blood is immediate.

[20]Second the appellant in describing how his hands and fingers looked when he was suffering an attack of HAVS, said “well there is no clear demarcation line it is a difference of shading, of colour” and although he might have appeared to change this evidence, clarified the position to the judge ultimately by making clear “there is no very clear distinction. It is not like a red and white stripe” [see 120 and 126]. The judge’s view was that if HAVS was causing white fingers the description that a patient would give would include the fact that there was a clear “demarcation”. Indeed it was that demarcation which the appellant had reported to Mr Cuschieri.

[21]The judge expressed the strong view towards the conclusion of Mr Hague’s evidence and then at the conclusion of his evidence, that what Mr Hague was describing was not HAVS or VWF. In so doing he was undoubtedly utilising the experience he had gained in other cases in an exchange with counsel who also had experience in other cases.

[22]The judge at this stage informed counsel for Rexam that he did not need him to cross-examine Mr Hague, and submissions were then made by Mr Lewis and he addressed the judge as follows:- “Mr Lewis: Your Honour has heard the claimant’s description of symptomology. My submission is when those symptoms as described today are compared to the symptoms obtained in the history given to Mr Cuschieri on page 488 there are considerable similarities, save possibly in respect of the description of the demarcation of colour returning and disappearing from the hand. There is an answer to Mr Cuschieri’s question the claimant was clearly able to describe a clear demarcation which one would ordinarily expect with symptoms of hand/arm vibration syndrome whereas today the description is less certain. My submission is that it is very difficult for any witness, patient or claimant to describe precisely the nature of the symptoms that they experience on a regular basis in the ways that the courts are required to analyse symptoms for the purposes of determining whether they have a condition related to work. My submission is that the claimant has done his best to be helpful to the court today in describing those symptoms; that those symptoms are consistent with those described to Mr Cuschieri, who as a consultant vascular surgeon readily accepted that the claimant was suffering from hand/arm vibration syndrome. I accept that in these cases there exists often a checklist of symptomology that one can go through to determine whether a patient or claimant has hand/arm vibration syndrome but my submission is the mere fact that there are symptoms that are not wholly consistent with each and every aspect of your Honour’s checklist does not mean that a claimant is not suffering from hand/arm vibration syndrome. My submission is that those symptoms described by this claimant are consistent and the vascular surgeon, Mr Cuschieri, has accepted them as such. Your Honour, unless there are any particular [symptoms] . . ? Judge Moore: No, I am really grateful to you, thank you very much indeed.”

Your Honour, unless there are any particular [symptoms] . . ?

[23]It will be noted that Mr Lewis did not revert to the question whether medical evidence should be called. The thrust of his point was to accept that at least in one regard what the appellant had described in his evidence as his symptoms were not consistent with his having HAVS, but he was submitting that the judge should conclude that a claimant may have difficulty in describing symptoms in the witness box and the judge should conclude that the appellant had given an accurate description to Mr Cuschieri, and should thus follow Mr Cuschieri’s view. It will also be noted that Mr Lewis at this stage did not suggest that even if the appellant’s evidence did not support the case of his vascular problems i.e. his white fingers being caused by HAVS, his evidence did support a case that the appellant suffered from HAVS with only a sensori-neural consequence.

[24]The judge did not accept Mr Lewis’ invitation to approach the case on the basis of what the appellant had told Mr Cuschieri. He did not call on Mr Limb, counsel for Rexam. He then gave a judgment in favour of Rexam concluding amongst other things:

“12. I am quite satisfied, because I am familiar with Mr Cuschieri and the way he gives his evidence and the way he concludes, that had he been able to hear this account in the way that it has been given with the precision and clarity with which it has been given, Mr Cuschieri could only have come to the same conclusion as I; that this claimant is not suffering from HAVS. Indeed, from every case I have ever done, and I have done many, including the long case aforesaid, it demonstrates to me the necessity to take precise and clear evidence. In no case has anybody suggested that the kind of evidence given by this claimant constitutes HAVS. I am quite satisfied, indeed I am satisfied well beyond the civil standard, to a point where I am satisfied so that I am sure about it, that this claimant is not suffering from HAVS and accordingly his claim should be dismissed. ”

[25]After the judgment, the solicitors acting for Mr Hague consulted Mr Cuschieri, and put before him at first a note and later a full transcript of the appellant’s evidence and a note and then a transcript of the judge’ judgment. Correspondence ensued. There is an application to put the correspondence and in particular Mr Cuschieri’s responses in as fresh evidence in this court.

[26]The notice of appeal asserts that the trial process was unfair because the judge had wrongly determined to hear and decide the preliminary issue without the necessary oral medical evidence, and because the judge had wrongly imported expert evidence from previous cases without giving the experts in this case the opportunity to deal with them. Mr Lewis realistically accepted that his appeal would have little purpose unless he could show that Mr Cuschieri if he had been called would have had some prospect of being able to persuade the judge that the appellant did suffer from HAVS. He submitted that with the fresh evidence he had that prospect.

[27]We have looked at the correspondence de bene esse. The main thrust of the views which Mr Cuschieri expresses (and they are not absolutely clear) seem to be (1) that because the appellant’s evidence of his vasculatory symptoms as given in evidence were at times contradictory and since his opinion was based on what he was told in February 2002 he did “not feel the need to change his opinion”;(2) that in HAVS sensori-neural symptoms can exist either in isolation or in association with vascular symptoms. He also expressed the view that he was commenting “without the benefit of watching the proceedings which incurs some disadvantage”. [see his letter of 1st June 2005]

[28]It is accepted that the principles identified in Ladd v Marshall

[1954] 1 WLR 1489

are still relevant to the question whether fresh evidence should be admitted in the Court of Appeal. They are(1) the evidence could not have been obtained with reasonable diligence for use at the trial;

(2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;

(3) the evidence must such as is presumably to be believed; it must be apparently credible, though it need not be incontrovertible.

[29]Mr Lewis’ submission is that the judge had decided to try the preliminary issue without hearing the medical evidence orally, and that he was prevented from calling Mr Cuschieri. He submits that in the way the trial went he did not have the opportunity of obtaining the view of Mr Cuschieri on the evidence given by the appellant. The new reports of Mr Cuschieri could not thus he submits have been obtained with reasonable diligence for use at the trial; they would he submits have had an important influence on the result of the trial and are apparently credible.

[30]He submits that if he had informed Mr Cuschieri of the appellant’s evidence and been able to call Mr Cuschieri that would have supported the appellant’s case in two ways. First he submits that he would have had some prospect of persuading the judge even on the basis of the evidence that the appellant had given, that he was wrong to reject the appellant’s case that he had HAVS causing vascular symptoms i.e. white fingers. Second he submits that even if that were wrong, the reports support a case that the appellant suffered from HAVS with only sensori-neural symptoms, a matter which the judge overlooked. He submits that the unfairness has deprived the appellant of an opportunity of succeeding in establishing that he does suffer from HAVS with vascular consequences and/or sensori-neural consequences.

[31]Mr Limb’s response is first that it is inaccurate to say that the judge had actually decided to hear the case without hearing oral medical evidence or that the judge actually prevented oral medical evidence being called. He had suggested that it was possible for him to do so, but any decision as to whether he should do so or not was postponed until after Mr Hague gave evidence. Second he submits that where a judge tries a series of cases concerned with something like HAVS, the assumption must be that he will use his experience gained in previous cases, and that is perfectly legitimate so long as no one is taken by surprise or deprived of an opportunity of dealing with the information that the judge is using. In this case not only was the judge very experienced in HAVS but so were counsel on both sides, and even the experts reports seemed to assume a degree of knowledge of the classic symptoms not feeling it necessary to spell those out. Third he submits that there was no objection to the appellant’s evidence being taken by the judge in the absence of the experts, indeed the programme agreed between the two sides contemplated that as being the way evidence would be given. Fourth once the evidence had been given Mr Lewis did not seek to have time to put the appellant’s evidence before Mr Cuschieri or seek to have Mr Cuschieri called to give evidence. He suggests that Mr Lewis appreciated with his expertise in this area that if the appellant’s description in evidence of his symptoms had to be accepted, Mr Cuschieri would not support the appellant’s case that he was suffering from HAVS. For that reason Mr Lewis was submitting that he was entitled to go back to the way the appellant had described things to Mr Cuschieri.

[32]He submits that even looking at the correspondence de bene esse, one can see that the judge was clearly right and indeed Mr Lewis was right in concluding that Mr Cuschieri would not on the evidence that the appellant gave have supported the appellant’s case that he was suffering vascular symptoms as a result of HAVS. What he submits has happened is that a new case is now being trailed by Mr Cuschieri - not the case at the trial, and not a case at which Mr Lewis hinted in his final submissions i.e. that the appellant is suffering from HAVS but with only sensori-neural symptoms. If that case had been sought to be made at the trial he would have submitted it had no support from the medical experts in their reports and should not be allowed to be made once the appellant had given evidence.

[33]He submits that the appellant is in fact seeking to put in fresh evidence in the Court of Appeal relating to the possibility that he is suffering sensori-neural symptoms as a result of HAVS quite independent of his vascular symptoms, which, if it had been his case, was evidence which was available at the time of trial. He thus submits that on the first limb of Ladd v Marshall we should refuse to admit the evidence.

[34]In any event he submits that if the damage said to have been suffered is limited to the sensori-neural symptoms described by the appellant they are atypical of HAVS as Professor Charlesworth had explained, and in any event even if that does not dispose of the claim completely, would give rise to a very limited claim to damages.

Discussion

[35]The bare facts set out at the commencement of this judgment might give the impression that the judge “prevented” relevant oral evidence being given. Although there is a general discretion in the judge to exclude evidence see CPR 35.1.1., it is difficult to think of a situation in which it would be fair to “prevent” relevant evidence being called; the discretion would seem to be aimed at repetitive evidence or evidence which the judge deems to be so peripheral as to be of no assistance to him or her. However, although a little concerned at the judge’s robust approach, I think it is unfair in the final analysis to say that Judge Moore “prevented” relevant evidence being given. He suggested that oral expert evidence might not be necessary, and undoubtedly he did so on the basis of his experience in trying HAVS cases. He cannot in my view be criticised for using his experience in previous cases as long as it was plain to the parties what experience he was using and as long as they had an opportunity to challenge what they perceived to be misconceptions. In this instance he made plain to counsel, also familiar with HAVS, the symptoms which he was saying were inconsistent with HAVS, and no one suggested at the trial nor do they suggest now that he was wrong. No request was made to put in evidence to challenge the judge’s views on contra-indications.

[36]Furthermore expert evidence is under CPR 35.5(1) to be given by written report unless the court otherwise directs. Although the court had otherwise directed in this case, it must always be open to the court to reconsider that question. That was what Judge Moore proposed as a possibility, but he accepted he should only finally rule whether oral evidence should be given once the appellant had given evidence.

[37]Both sides had agreed a programme under which the appellant was to give evidence without the medical experts present. If the appellant was to describe his symptoms differently from that which the experts recorded him as providing, the experts were on any view going to be at a disadvantage as compared to the judge. So both sides were placing great reliance on the judge as to his ability to discern whether the appellant was describing HAVS symptoms.

[38]Judge Moore and counsel for both sides were aware when the appellant was giving evidence that his description of what I might term non-spontaneous recovery was inconsistent with HAVS or at least the vascular problems caused by HAVS, and that his description of there being no clear demarcation line was equally inconsistent. It is not suggested that any evidence could have been given to contradict the Judge’s understanding as to these contra-indications.

[39]The fair description of what happened in this case was that, following the appellant giving evidence, Mr Lewis formed the view, quite properly because of his own experience which was consistent with that of the judge and indeed all the experts, that the appellant had given evidence of symptoms inconsistent with him having HAVS, and that there was no point in calling Mr Cuschieri to support the appellant’s case on the basis of that evidence. It did not occur to him on the basis of any report from Mr Cuschieri that there might be a case to be made on the basis that the appellant’s sensori-neural symptoms alone were caused by HAVS. He therefore took the decision not to request the judge to allow oral evidence to be given, and sought to argue that the judge should approach the matter by reference to the description given to Mr Cuschieri rather than the appellant’s evidence. That was an approach that the judge was entitled to reject and did reject.

[40]Mr Cuschieri, in the correspondence since the trial, does not support the appellant’s case on the basis of the descriptions given in the witness box. When asked this question:- “Assuming that the judge was right and that Mr Hague was incapable of describing demarcation AND that he did not have any sensory-neural symptoms (apart from when he had the attacks or puts his arms above his head) would you still say that it was HAVS?” Mr Cuschieri’s response was rather to avoid the question, saying, by letter dated 20th April 2005:- “On the basis that Mr Hague experienced tingling in relation to the use of vibratory tools and which persisted for about thirty minutes after he had been using the tools, and on the basis that exposure to cold was associated with tingling in his fingers, irrespective of whether there was or was not any associated colour changes, I would be of the view that this would be consistent with Mr Hague suffering from the neurological manifestations of the hand / arm vibration syndrome (my emphasis) Mr Hague also admitted a tingling in the fingers, which was not necessarily related to cold. I could not find any clinical evidence for a diagnosis of cervical spondylosis (normal neck movements), thoracic outlet syndrome (negative Adson’s test), or carpal tunnel syndrome (absence of nocturnal symptoms, though Phalen’s test was positive), as indicated in my reports following examination on 14.2.03 and 14.6.03. I would also add that in HAVS sensori-neural symptoms can exist either in isolation or in association with vascular symptoms.”

[41]The reliance on sensori-neural problems being something that a patient may suffer quite independently from vascular problems is a totally new case. It is certainly not a case which Mr Cuschieri was supporting in his original report or one even hinted at in the joint report. If Mr Lewis had anticipated that Mr Cuschieri could support a sensori-neural case rather than a vascular case and had applied to the judge to permit him to give evidence on that basis, the judge would have been bound to refuse that application on the basis that the claimant was trying to make a new case at trial not foreshadowed in the expert’s reports in the form they then took.

[42]In any event such sensori-neural problems as the appellant may have appear minor, and Mr Cuschieri’s reports are hardly compelling in their support for possibility that they are caused by HAVS. Professor Charlesworth would clearly be of the view that they were not so caused.

Conclusion

[43]As a general proposition it must be wrong for a judge to take the view that he could decide medical matters without the assistance of experts if one party or the other wished to call that evidence. But that is not on a proper analysis a fair description of the circumstances of this case. So far as contra-indications of HAVS were concerned the judge and counsel with their experience were aware of them and no one wished to call evidence to suggest that the judge was under a misapprehension as to those contra indications. Indeed on the case as it was being presented by the appellant at the trial, once he had given evidence there was no submission that any oral evidence from the experts would assist the judge. There was no prevention of such evidence being given. On the appeal the attempt is in reality to put in fresh evidence of a case which could have been made at trial but was not; if it was a case that could have been made at trial, there is no reason why the evidence should not have been made available in a report for the trial, and there is no reason why it should now be admitted on this appeal. The new case even now is in fact weak in the extreme. Even if successful it could not in any event be of great value. If it were otherwise justice might have demanded that the evidence should be admitted and a retrial contemplated, but I am quite clear that that would not be right in the circumstances of this case, and the appeal should be dismissed. Lord Justice Longmore: I agree. Lord Justice Lloyd: I also agree.