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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Elt v Orsler & Anor [2001] EWCA Civ 1226 (23 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1226.html Cite as: [2001] EWCA Civ 1226

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LUTON COUNTY COURT
(His Honour Judge Hamilton)

		The Royal Courts of Justice The Strand London WC2A Monday 23 July 2001

Monday 23 July 2001

1. LORD JUSTICE TUCKEY: This is a renewed application for permission to appeal from a judgment of His Honour Judge Hamilton sitting in the Luton County Court who on 18 January 2001, after a four-day trial, dismissed the applicant's personal injury claim against both defendants to the proceedings.
2. The applicant was employed by the first respondent as a housekeeper and farm worker from October 1993. On 3 September 1994 she accompanied him to the Moreton-in-Marsh show, which was run by the second respondents. One of the first respondent's cows won a prize at the show and it was agreed that the applicant, who had paraded this cow in the morning on two occasions without problems, would accompany the cow in the prize-giving parade which was to be held in the main ring. After the parade, the prize-winners stayed in the ring and lined up in front of the judges to receive their prizes. The applicant's case was that, after waiting for some time, her cow suddenly charged forwards towards the judges' table. She managed to restrain the cow, and push it back into its position in the line, but once she got it back there she had to struggle to keep the animal under control for what, she said in evidence, felt like a quarter of an hour or 20 minutes until a Mr Mair, who had been holding a bull nearby, offered to help and took the cow over.
3. The applicant's case was that she was not aware that she had suffered any injury at the time but during the next few days she became aware of pain in her shoulders and this condition deteriorated until July 1998 when she was diagnosed as suffering from fibromyalgia. This condition was said to be attributable to the shoulder injury which she had sustained at the show in the way I have described.
4. The respondents' case was that there was no dramatic forward movement of the cow in the way the applicant described. Mr Mair had only seen the animal go forward about a yard and had gone straight away to her assistance. There was, so they said, no indication that this was likely to happen and nothing they could have done after it had happened. The first respondent was in fact out of the ring at the time and the animal was brought under control so quickly that no assistance by anyone in the ring would have been possible. The respondents' medical evidence, based on an extensive analysis of the applicant's medical records, showed, they contended, that the incident had caused no real injury and that there was no question of her present condition being attributable to any such incident.
5. The applicant was represented by solicitors until April 1999, after which she acted in person. The circumstances in which her former solicitors ceased to act for her are unclear but I am told by counsel that they did not provide proper justification for doing so and that, in the following months, the applicant had tried to obtain other solicitors but no-one was prepared to act for her.
6. The solicitors had obtained a medical report from Dr Tai, who is a consultant anaesthetist, which supported her case on causation. But in the months before trial he made it clear that he was no longer prepared to act for her. He refused to confer with the other side's experts to produce a joint report, even though the court made an unless order that he should do so, and the judge refused to let the applicant rely on his report at the trial.
7. In the months before trial, the applicant applied at least twice for the case to be adjourned or stayed because she was ill and felt unable to represent herself. She supported those applications with a written report from a psychologist, Dr Pimm. The judge refused these applications and so it was that the trial started on 15 January 2001. In the course of the hearing the applicant said several times that she was unwell and having difficulty in proceeding.
8. Her first complaint, made in a skeleton argument and developed orally before me by Mr Ball on her behalf, is that the judge should not have proceeded with this trial at all. He should either have adjourned it or stayed it on terms which, if the applicant was unable to obtain representation or be in a fit state to conduct her own case within a period of time, would automatically have resulted in her case being dismissed.
9. That such a course was justified is shown by what happened during the trial and the judge's handling of it, all of which, Mr Ball says, made the trial unfair. He pointed to the fact that the applicant was not allowed to re-examine herself after she had given her evidence and been cross-examined on it. If the applicant did address the judge on primary liability, she did not do so in any way which was designed to assist him with the issues which he had to resolve. The judge stopped the applicant from asking questions which might have revealed that there were regulations which were relevant to the way in which she should have been instructed to handle cattle at this show.
10. I considered those points (most of which were set out succinctly and clearly in Mr Ball's skeleton argument) when I dealt with this application on paper and I have considered them again for the purpose of today's hearing. The essential complaint is that this was an unfair trial which the judge should not have allowed to proceed. Mr Ball added that if the judge was only going to hear the defendant's medical expert evidence he should have realised that he would inevitably reach the conclusion that the applicant was not going to establish causation in any event, and so the trial was a foregone conclusion.
11. When considering the matter on paper I said this:

"This incident happened in 1994. By 2000 there was no prospect of the applicant getting legal assistance or of her health improving. Her claim had to be tried or dismissed. It seems to me that the judge did his best to make the trial as fair as possible and the applicant presented her case ably."

12. I have obviously reconsidered what I said in the light of the further submissions which Mr Ball has made to me today. But I remain of the view that this was not an unfair trial. The judge was not offered any prospect by the applicant that she would get legal assistance or that she would get better. Indeed, as far as one can see from the medical evidence, if anything she was likely to get worse. In those circumstances, the judge really had no alternative but to allow the case to proceed. He could have dismissed it out of hand but this would have led, I am sure, to a much greater sense of injustice in the applicant than she now feels.
13. I have looked at the transcript again. The judge adjourned each day early when the applicant said she did not feel able to go on. At the end of the first day, he made a point of saying that he would use the extra time he had by adjourning to look into the documents to see if there was anything which he could find to assist the claimant's case. It seems to me that he tried help her in the way that judges should do when they have litigants in person in front of them; that in fact he did give her latitude of a kind which he would not have given to a represented litigant. Whilst it may be that some of the applicant's advocacy was unfocused, I remain of the view that she did present her case ably. She was persistent and although she may have strayed from the point at times she nevertheless was able to put her case to the judge.
14. Broadly speaking, the judge accepted the respondent's case and rejected the applicant's case in a careful 44-page judgment. She complains however that the judge misunderstand her case, which was that she was not injured when the cow first moved forward, but in the subsequent extended period when she was struggling to keep the animal under control. In this period someone ought to have come to help her sooner than Mr Mair did and/or she should have been instructed to let go of the animal. Mr Mair, she contends, only saw the end of the incident.
15. I do not think the judge did misunderstand the applicant's case. He recited a good deal of her written statement in his judgment. The applicant in her evidence made it clear that she did not really know how long she was struggling to hold on to the cow before Mr Mair came to her rescue. Mr Mair's employer, Mr Turney, who was standing next to him, said in evidence "in a ring of that nature you pick up incidents instantly". They did not see or describe the applicant struggling to hold on to the animal for 15 or 20 minutes, as she says, and it seems to me that the judge was justified in concluding that if they had not seen it, it had not happened in that way. The fact that the judge said that he substantially accepted the applicant's account of what happened does not, it seems to me, undermine that conclusion. So I conclude that the judge understood the applicant's case but, in this important respect, did not accept it.
16. In his submissions to me, Mr Ball this morning did not rely heavily on the third of the grounds in his skeleton argument because I was in his favour on this point. This point is simply that the judge ought to have considered Dr Tai's report as part of the evidence in the case. But the answer I gave on paper is that if the applicant had lost only on causation I would probably have granted permission, because I think it is arguable that the judge should have taken Dr Tai's report into account. However, this would serve no purpose because I think the judge's finding on primary liability is unassailable.
17. So in the result, I am afraid I do not think this appeal has any real prospect of success. I am extremely grateful to Mr Ball for the careful and comprehensive way in which he has made his submissions to me this morning. I am sure he has said everything that could possibly be said in support of the application but, despite those submissions, for the reasons I have given permission must be refused.
ORDER: Application refused