Mutuma v London Borough Of Barnet

On an interlocutory application for permission to appeal, the Court of Appeal may adjourn where a document central to a pleaded issue has been misidentified or lost and the resulting evidential uncertainty prevents proper consideration of the case. A trial judge’s preference between competing factual accounts does not necessarily resolve separate allegations concerning risk assessment, training, supervision or warnings. The court may require a fuller explanation of missing material, relist the application on formal notice, and direct mediation where this may avoid substantial further expense. Failure to attempt mediation may have costs consequences.

The applicant, a care assistant employed by a local authority, claimed damages for personal injuries allegedly suffered while helping to transfer a disabled young man from his wheelchair to a bed. The Central London County Court, before His Honour Judge Roger Cooke, dismissed the claim on 19 October 2001. The applicant sought permission to appeal.

His pleaded case included allegations that the local authority had failed to assess the manual-handling operation adequately, reduce the risk of injury, and provide proper training and information under the Manual Handling Operations Regulations 1992. During the permission application, the Court of Appeal sought an explanation concerning exhibit MED4. The response indicated that the exhibited document related to another patient and that the relevant risk assessment could not be found. The central issue was whether the evidential uncertainty and the apparent lack of attention to the separate training and supervision allegations required further consideration before permission and any appeal were determined.

Application adjourned. Time was extended. The appeal was to follow if permission was granted, and the parties were directed to attempt mediation through the Court of Appeal office. Transcripts of the judgment were to be supplied at public expense.

1. Ward LJ considered the missing document MED4 material. It had been intended to be Stuart Edwards’s August 1994 risk assessment, but the exhibited document concerned a female patient. The correct document was said to have disappeared. The defendants’ evidence was inconsistent: one witness relied on a February 1994 assessment and another on an August assessment. Given evidence that Edwards’s condition had deteriorated and that procedures may have required updating, the court required a proper explanation of the document’s fate and of the efforts made to trace it.
2. The court distinguished the factual dispute over how the lifting incident occurred from the separate pleaded allegations concerning the adequacy of the risk assessment, instructions, training, supervision and warnings. The judge’s preference for another witness’s account created a substantial difficulty for the proposed appellant, but it did not resolve the separate allegations. The expert’s conclusion that training and supervision had been inadequate, and that the claimant had not been warned against unsafe practice, appeared to have received little close attention. The missing assessment might therefore be important to deciding what instructions were required under the Manual Handling Operations Regulations 1992 and ordinary duties.
3. No final view was expressed on the merits. The appellant might fail, or might succeed on part of the claim, after the evidential position had been clarified. The matter was to return on formal notice, preferably before the same constitution, with the appeal to follow if permission was granted.
4. Because preparation would be expensive and mediation might produce a satisfactory conclusion, mediation was directed. Failure to attempt it could have costs consequences when the matter returned.

• Court of Appeal (Civil Division) — In [2002] EWCA Civ 674, the application for permission to appeal was adjourned. The parties were directed to attempt mediation, with the appeal to follow if permission was granted.
• Central London County Court — His Honour Judge Roger Cooke dismissed the personal-injury claim on 19 October 2001.