Appeal success after judge rules that medical evidence did not establish causation

In the case of Mr Mitchell Burrows -v- Premier Automotive Limited (In the County Court at Manchester, on appeal from District Judge Iyer), his Honour Judge Ranson (HHJ Ranson) considered the appeal of the decision of District Judge Iyer (DJ Iyer) to strike out the claimant’s claim and set aside Qualified One Way Costs Shifting (QOCS) after the claimant was refused permission to rely upon medicolegal evidence in claim where the defendant had admitted liability in full. 

The facts of the case 

The claimant was employed by the defendant and was acting in the course of his employment as a vehicle technician. On September 23, 2019, the claimant was instructed by the defendant to empty an oil drainer. As the claimant was completing this task, the oil drainer exploded, causing the contents of the same to go onto his face, arms, legs and into both of his eyes. 

The claimant reported the incident to his manager and left his shift to attend A&E. At this hospital he was advised that the PH level in his eyes was extremely high due to the oil. They were flushed with saline and provided with sterile eye drops to continue at home. The claimant experienced redness, pain and blurred vision for approximately 1.5 weeks but developed dry eyes thereafter. He visited his optician to assess whether there was any underlying issue from the accident and was advised to use Optrex eye drops to alleviate the symptoms of dry eyes. 

The claimant instructed Express Solicitors to bring a claim for personal injury and financial losses against the defendant. The claimant’s claim was submitted to the MOJ Portal for Low-Value EL/PL Claims on November 28, 2019 and a full admission was made by the defendant on December 24, 2019. 

There was some difficulty in getting the claimant examined by a medicolegal expert. He was eventually examined by Dr Kwartz. At the time of instruction, Dr Kwartz was believed to be an ophthalmologist however it later transpired that she was an optometrist. While the report from Dr Kwartz supported that the claimant suffered an injury following the accident it did not definitively provide a prognosis on the same. 

At the point of receiving Dr Kwartz’s report, the claimant’s claim had been issued and served due to limitation. The report of Dr Kwartz was then served on the defendant and the court prior to receiving the Notice of Proposed Allocation and a date for the Directions Questionnaires to be filed. The subsequent directions did not allow the claimant permission to rely upon any medical evidence in support of his claim. 

At this stage, a further report was obtained from an ophthalmologist. The claimant was examined by Mr Kulshrestha and in his opinion, the claimant suffered an injury to his eyes and developed dry eyes and an astigmatism which was not present prior to the accident. While the report from Mr Kulshrestha was supportive of the claimant’s injury it did not provide an opinion on causation and prognosis. 

The defendant made an application to strike out the claimant’s claim pursuant to Practice Direction 3A (1.5) and Part 44.11 (1b) of the Civil Procedure Rules and for the claimant to pay the defendant’s costs pursuant to Part 44.11 (2b) of the Civil Procedure Rules. Prior to the defendant’s application being heard the claimant made an application for permission to rely upon the medical report of Mr Kulshrestha. 

The ruling of District Judge Iyer 

On February 27, 2024, the defendant's and claimant’s applications were heard by DJ Iyer. The claimant’s application was dismissed on the grounds that an application for relief from sanctions should have been made to rely on the report. DJ Iyer further opined that there was no prognosis contained within the report such that a further report, the conclusion of Mr Kulshrestha was inconsistent with Dr Kwartz and the philosophy of expert shopping may be engaged and that the trial date would have to be vacated.

The defendant’s application to strike out the claimant’s claim was successful. The claim was struck out under CPR 3.4(2)(a) and (c). DJ Iyer held that the claimant disclosed no reasonable grounds for bringing the proceedings within the meaning of CPR 44.15(a), the conduct of the claimant or his legal representatives is likely to obstruct the just disposal of the proceedings within the meaning of CPR 44.15(c) and that the claimant was not entitled to QOCS protection for these reasons. 

Appeal launched

An appeal was lodged following the Order of DJ Iyer on the grounds that the claimant did not require relief from sanctions to rely upon the medical evidence and the decision to strike out the claim and set aside QOCS was incorrect application of the law. 

Within the grounds for appeal various issues were raised in respect of the Order or DJ Iyer to be considered at the Appeal. The main points of the appeal were as follows: 

1. The Judge had incorrectly applied the “Denton” test to the claimant’s application when relief was not required.

2. The judge had not taken into consideration that the defendant had admitted liability in full and were not calling witnesses to give evidence when considering the claimant’s prospects of success. 

3. The medical report did confirm there had been some harm caused by the accident and while further clarification was required this could be covered by Part 35 questions or a short addendum report. 

4. Failing to consider whether it was just and proportionate to strike out the claim and the grounds in which the strike out was made. 

5. Disapplying QOCS under grounds 44.15 (a) and (c) when the claimant had shown reasonable grounds for bringing the proceedings. 

Appeal verdict

On November 18, 2024, the appeal took place before HHJ Ranson. HHJ Ranson agreed that District Judge Iyer had incorrectly applied the test for relief from sanctions in consideration of the claimant’s request to rely upon the medical report of Mr Kulshrestha. He further opined that the hearing was a clear example of a mini-trial and that the defendant’s application to strike out was made incorrectly as an attempt to set aside QOCS and the grounds for strike out raised in the application cannot be justified or satisfied.

In HHJ Ranson’s judgement, he set aside the Order of District Judge Iyer and reinstated the claim, granting the claimant permission to rely upon the initial medical report of Mr Kulshrestha and to obtain a supplementary report. The claimant was also awarded considerable costs in respect of the appeal. 

In any case, if an unsatisfactory judicial decision is made, careful consideration should be given to assess whether there are any real prospects to appeal that decision.