Tutas v East London Bus & Coach Company

In a personal injury claim, reasonable evidence that treatment was provided and that payment is required will ordinarily establish a recoverable expense. Proof of the precise payment channel is not normally necessary unless a party is on notice of a need to investigate it. Where a defendant raises a material challenge late, the court must either exclude the point or give the claimant a fair opportunity to answer it, including by a short adjournment if necessary. Evidence that a claimant does not know who arranged or paid for treatment is not an admission that he was not liable. The appeal was allowed because the first-instance judge excluded responsive evidence and made a factual finding unsupported by the evidence.

Mr Hasan Tutas brought a personal injury claim against his former employers following a low-velocity collision between buses. Liability was admitted. The County Court awarded general damages for physical injury and post-traumatic stress but disallowed a claim of £513.50 for private physiotherapy.

The physiotherapy expenses had been disclosed before trial. The defendant first expressly challenged the claimant’s liability to pay on the eve of the hearing. A letter explaining the treatment and payment arrangement was produced immediately before judgment, but the judge declined to admit it and concluded that the claimant did not believe he was liable. The appeal concerned the fairness of that case-management decision and whether the finding of fact was supported by the evidence.

1. Appeal allowed. The respondent’s notice was admitted. The Court of Appeal held that both grounds of appeal were made out.
2. Where a material challenge is raised late in the proceedings and the claimant produces evidence in response, the judge should either exclude the late point or allow it to be fully explored. That may require a short adjournment, further evidence and further submissions. It is unfair to permit a point to be run while preventing the claimant from answering it. The judge was therefore wrong simply to ignore the letter produced immediately before judgment.
3. In personal injury litigation, the precise chain by which a treatment expense is paid does not ordinarily require proof by bank statements or credit-card records. Reasonable evidence from those seeking payment that payment is required will normally suffice, unless a party is on notice of a need to investigate the arrangement more closely.
4. The claimant’s evidence showed that he did not know who had arranged or paid for the physiotherapy, but assumed that the defendant was responsible. It did not amount to clear evidence that he was not liable. The first-instance finding that he did not believe himself liable was not supported by the oral evidence.
5. Sir Stephen Sedley agreed. The letter explained that payment for the treatment was deferred and pursued as part of the compensation claim. Subject to any separate credit-hire issue, the expense was recoverable. The appeal was accordingly allowed.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 1380, the appeal was allowed and the respondent’s notice was admitted.
2. Clerkenwell and Shoreditch County Court: His Honour Judge Cryan, on 11 November 2011, disallowed the claimant’s £513.50 physiotherapy claim.