Nestor v United Bristol Healthcare NHS Trust

Permission to appeal should be refused where an application is substantially out of time without a good reason and the proposed appeal has no real prospect of success. A trial judge is entitled to decide whether an alleged accident occurred by assessing the evidence, including witness credibility. Medical evidence that symptoms are consistent with an alleged injury does not establish that the incident occurred or that the symptoms were caused by it. The Court of Appeal will not interfere with factual conclusions that were open to the trial judge on the evidence.

The applicant’s personal injury claim arose from an alleged workplace accident in which the back of her chair tilted backwards. Mr Recorder Belben, sitting in Bristol County Court, dismissed the claim on 12 December 2000, finding that the alleged accident had not been established and that the symptoms were not shown to be attributable to it.

The applicant sought permission to appeal on 2 October 2001, approximately nine months after the decision. She also sought an extension of time and permission to rely on further evidence. The central issues were whether there was a good reason to extend time and whether the proposed appeal had a real prospect of success.

1. Application out of time. The application for permission to appeal was made substantially outside the period normally regarded as acceptable. An extension of time required a good reason for the delay. The applicant provided no explanation for the approximately nine-month delay.
2. Prospects of appeal. Even if the delay could have been explained, the proposed appeal had no real prospect of success. The trial judge had to decide, on the evidence, whether the alleged accident occurred and whether the applicant’s symptoms were attributable to it.
3. Assessment of evidence. The judge was entitled to reject the applicant’s account and accept the evidence of the other witnesses. The fact that doctors considered the symptoms consistent with the alleged injury did not establish that the accident had occurred. No doctor had witnessed the alleged incident, and the medical evidence did not require a different factual conclusion.
4. Disposition. There was no reason to believe that the Court of Appeal would interfere with the county court judge’s findings if the matter were fully argued. The application for permission to appeal was dismissed.

• Court of Appeal (Civil Division): On 7 March 2002, Lord Justice Kennedy dismissed the application for permission to appeal, including the request for an extension of time.
• Bristol County Court: Mr Recorder Belben dismissed the applicant’s claim on 12 December 2000.