Hague v Rexam Glass (Barnsley) Ltd.

A judge should not ordinarily decide medical issues without expert assistance where relevant expert evidence is sought. The judge may, however, use experience gained in earlier litigation where the parties know what matters are being relied on and have an opportunity to challenge them. Proceeding without oral expert evidence is not unfair where the parties agreed that lay evidence would be heard first, the relevant contra-indications were known and unchallenged, and no request was made to call the experts. Fresh evidence cannot be used on appeal to introduce a new medical case that could have been advanced at trial.

The appellant claimed that employment with the respondent had caused hand-arm vibration syndrome, formerly called vibration white finger. Medical experts disagreed. Although directions permitted oral expert evidence, the parties agreed that the appellant would give evidence first and that the need for oral medical evidence would then be reviewed.

After hearing the appellant, the Sheffield County Court judge concluded that his account contained symptoms inconsistent with the condition. The judge did not call the experts and dismissed the claim on a preliminary issue. The appellant alleged an unfair trial, improper reliance on the judge’s experience of earlier litigation, and sought to adduce correspondence from his expert as fresh evidence. He also advanced a new case based on isolated sensorineural symptoms.

Appeal dismissed. Waller LJ gave the leading judgment. Longmore LJ and Lloyd LJ agreed.

1. Expert evidence and fairness. As a general proposition, it is wrong for a judge to decide medical matters without expert assistance where a party wishes to call relevant evidence. The discretion to exclude evidence is directed principally to repetitive evidence or evidence so peripheral that it would not assist the court. The court may reconsider whether oral expert evidence is required after hearing the lay evidence.
2. Use of judicial experience. A judge may use experience gained in earlier cases, provided it is clear to the parties what experience is being used and they have an opportunity to challenge perceived misconceptions. Under Civil Procedure Rules 1998 35.5(1), expert evidence is ordinarily given by written report unless the court directs otherwise. The trial judge’s reconsideration of the need for oral evidence was therefore permissible.
3. Application to the trial. The parties had agreed that the appellant would give evidence before the medical experts. The judge and counsel understood that his descriptions of gradual recovery of colour and the absence of clear demarcation were contra-indications. No evidence was offered to challenge that understanding, and counsel did not renew the request for oral expert evidence. Instead, he invited the judge to rely on the account given to the expert. The judge was entitled to reject that approach. The trial process was not unfair and relevant evidence had not been prevented.
4. Fresh evidence. The principles in Ladd v Marshall [1954] 1 WLR 1489 remained relevant. The proposed evidence sought to introduce a new sensorineural case that had not been foreshadowed in the expert reports and could have been advanced at trial. It therefore failed the reasonable-diligence requirement. The case was also extremely weak and of limited value. Admission of the evidence and a retrial were unjustified.

• Court of Appeal (Civil Division): In [2006] EWCA Civ 377, the appeal was dismissed.
• Sheffield County Court: His Honour Judge Moore decided on 12 April 2005 that the appellant did not have HAVS and dismissed the claim on a preliminary issue.