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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 >> Burke v Sema Group Medical Services [2002] EWCA Civ 1152 (12 July 2002)
Cite as: [2002] EWCA Civ 1152

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Neutral Citation Number: [2002] EWCA Civ 1152

(His Honour Judge Rich QC)

The Royal Courts of Justice
London WC2
Friday 12th July, 2002

B e f o r e :


DAVID MELLORY BURKE Claimant/Applicant
- v -
(NOW SEMA GROUP (UK) LIMITED) Defendants/Respondents


(Computer-aided transcript of the Palantype Notes
of Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7404 1400
Official Shorthand Writers to the Court)


THE APPLICANT appeared on his own behalf
THE RESPONDENTS did not appear and were not represented



Crown Copyright ©

  1. LORD JUSTICE LAWS: This is an application for an extension of time and permission to appeal from the order of 21st January 2002 made by His Honour Judge Rich QC, sitting as a deputy judge in the Queen's Bench Division. The learned judge dismissed the applicant's claim against the respondents, Sema Group Medical Services (now I think Sema Group (UK) Ltd), for damages for malicious falsehood. The malicious falsehood was said to be contained in a report as to the applicant's medical condition, a report which, so the applicant asserted, caused a reduction in his disability allowance. The judge ordered the applicant to pay 90 per cent of Sema's costs. There is also before me an appeal against the order made by Deputy Master di Mambro not to provide a transcript of the evidence in the case at public expense.
  2. The facts of the matter may be summarised in outline as follows. On 14th December 1998 the applicant lodged a claim with the Department of Social Security for a disability living allowance payable under the Social Security Administration Act 1992. This allowance falls into two parts, as I understand it, a care allowance and a mobility allowance. The applicant claimed that he was entitled to a mobility allowance at the higher of the two rates available under the statute. A person's entitlement to the higher rate depends on the extent of his disability, and in particular his capacity to walk. For the purpose of assessing the applicant's disability, the Disability Benefits Agency, which is in effect an arm of the Department of Social Security, proposed that he should be examined by two examining medical practitioners.
  3. Accordingly, on I think 19th January 2000 he was examined by two medical practitioners, Dr Farooqui and Dr Ringer, at his home in London. Both doctors were employed by Sema for the purposes of this examination. They conducted a clinical examination and an interview and produced a Disability Living Allowance Medical Report, as it is called, on a form whose serial number is DLA140. That was dated 19th January 2000, I think the date of the examination.
  4. The material parts of the report are to the following effect. First, there is section 2. In this section there is recorded -- or in light of the applicant's arguments, I should say supposed to be recorded -- a record of what the applicant said himself about his needs or his condition. The words of the report are as follows:
  5. "I walk 50 metres with a stick (outdoors) and get low back pain and sharp pain going up the spine and have to stop and sit or stand for one minute approximately and then can walk a similar distance again. It takes me two to three minutes to walk 50 metres. I get frequent cramps in the right foot whilst walking."
  6. A major part of the applicant's case before the judge is that the words "to walk 50 metres" after the words "two to three minutes" were not part of the statement that had actually been read out to him before he signed the declaration that is recorded in the form.
  7. Then next in the report there is part 5. In this part the doctors were required to set out their own findings as a result of the examination. Question 2(a) in part 5 asks:
  8. "Over what distance and terrain would the claimant be able to walk before the onset of severe discomfort, if any?"
  9. The answer stated was "approximately 100 metres". The applicant says, and indeed said to the judge, that the answer he had in fact given on this aspect was distorted by the doctors and the conclusion that he could walk 100 metres before the onset of severe discomfort was an entirely false conclusion.
  10. I should say there is a transcript of the recording of the examination; the applicant has referred to that.
  11. The report was sent to the Disability Benefits Agency and on 31st January 2000 the department wrote a letter rejecting the applicant's claim for mobility allowance at the higher rate.
  12. He issued these proceedings by a claim form filed on 8th March 2000. At that stage he had named both the Department of Social Security and Sema as defendants. On 21st June 2000 Sema applied for an order that his claim against them be struck out or that Sema be granted summary judgment against the applicant. On 28th July 2000 the applicant for his part issued an application for permission to amend the particulars of claim.
  13. At a hearing on 18th August 2000 Master Rose made an order by consent to the effect that the claim against the Department of Social Security be discontinued with no order as to costs. There is a transcript before me of the judgment given by Master Rose which is quite long and very considerably detailed. The Master also ordered that the claim against Sema for misfeasance in public office that had been pleaded should be struck out and dismissed, but otherwise he refused Sema's application to strike out the claim or to obtain summary judgment. Finally, the learned Master ordered that the applicant should give further information in respect of his allegation of malicious falsehood, though he did not consider it necessary to order the applicant to amend his particulars of claim.
  14. It is only fair that I should note that the original decision of the benefits agency not to grant full mobility allowance has, the applicant told me this morning, and it is I think in the papers also, been successfully appealed and he has now been awarded the appropriate allowance at the higher rate and the award has been backdated. So he has received all the mobility allowance to which he is entitled.
  15. The learned judge gave judgment, as I have said, on 21st January 2002. I can summarise his conclusions in this way. First of all, he was not satisfied that it was untrue that the inserted words "to walk 50 metres" had in fact been inserted before the applicant signed the document. But even if he had been so satisfied, he considered them to be no more nor less than words of clarification to avoid an ambiguity against the applicant. Their insertion could not in the judge's view be seen as a deliberate falsehood as to what the applicant said, made for the purpose of depriving him of a proper decision with regard to his claim for benefit.
  16. As for the answer to question 2(a), to which I have referred, the judge considered that was clearly a formulation of the examining doctors' medical opinion as to the applicant's capacity to walk tested against a particular test set out in the form. The judge was not satisfied that the judgment of the doctors recorded as an answer of "approximately 100 metres" misrepresented what the doctors truly believed. In the judge's view, the applicant's statement records that he walked two separate distances each of 50 metres, being obliged to pause for one minute between them by what the applicant described as low back pain and a sharp pain going up the spine. Whether that description of pain causing a short pause in a longer journey is appropriately described as the "onset of severe discomfort" was in the judge's view a matter of medical judgment.
  17. The judge noted that the applicant was at the time very anxious that certain recent medical reports which he had obtained from other doctors should be transmitted to the benefits agency to assist their decision-making. Those reports were not provided for the purpose of considering the criteria used by the agency in order to determine entitlement to the different kinds of benefit available under the legislation. The judge found that the doctors were quite right to treat the reports as being less relevant than their own findings. However, the judge also took the view that it was unfortunate that the doctors having had those reports pressed upon them did not see fit to refer to the reports at a point in their report where an opportunity to do so was provided. This is the reason why the learned judge limited the award of costs against the applicant to 90 per cent.
  18. Before me there are of course the applicant's grounds of appeal which I have read. There is also a skeleton argument and, at the back of the bundle, a document headed "supplementary skeleton arguments". This last document is dated 30th May 2002 and comes later, as is plain, than the principal skeleton argument which is before me.
  19. In the grounds the following points are taken, though it is fair to say that the applicant says they are not to be treated as exhaustive. (1) the two doctors perjured themselves under cross-examination; (2) the witnesses, the doctors, gave evidence which was entirely at odds with another expert witness, a senior doctor; (3) there was photograph evidence which discredited the original statements of the two doctor witnesses; (4) the court accepted supplementary statements from both witnesses which were served out of time and in which the witnesses stated they had misheard the applicant; (5) four medical reports handed to the doctors disappeared and were not mentioned in the doctors' report; (6) neither witness should have been allowed to hear the other's evidence and cross-examination; (7) the decision was unreasonable and a breach of section 6 of the Human Rights Act and a breach also of the principles of natural justice; and (8) it is said in general terms that the judgment was seriously flawed.
  20. The original skeleton argument broadly follows these points. In the additional skeleton argument some further points are taken. One of these is a matter on which Mr Burke, the applicant, placed great emphasis before me this morning. He submits that the words "before the onset of severe discomfort" had been included in what he had said to the doctors after the words "I walk 50 metres", yet they were omitted in the record of what he was supposed to have said in section 2 of the report and this was a point with which the judge simply did not deal at all. He says that if it had been recognised that those words had indeed been said by him but omitted from the record in the report, a wholly different impression of what he meant to convey to the doctors would have been given.
  21. This submission is not in the grounds of appeal nor in the original skeleton argument, though as I have said it does appear in the supplementary skeleton argument. There is a reference to it, moreover, in the document that the applicant provided pursuant to the order made by Master Rose to which I have referred. This might have been a substantial point, but for this. At page 3C to E of the transcript of the judgment, the judge says this:
  22. "It is agreed by the claimant that he did indeed, in answer to question 2 on his own statement, say words which are correctly recorded as follows."
  23. Then the words appear which I have already quoted, "I walk 50 metres "and so on, and there is no inclusion of any such words as "before the onset of severe discomfort".
  24. The question before me is whether it is arguable that the judge was not entitled to arrive at the factual conclusions which he reached.
  25. On my asking him this morning the applicant, while vigorously asserting that indeed those words about severe discomfort had been omitted from the statement, agreed nevertheless that he had accepted before Judge Rich in the court below that the words that are set out by the judge at page 3D were correctly recorded. It seems to me quite impossible therefore to suggest that the judge was not entitled to arrive at the conclusion he did in relation to that part of the statement.
  26. As regards the other complaints, I am afraid I have to say that there is simply nothing that has been put before me to suggest that the judge was not entitled to find as he did. The applicant's complaints, pursued I may say with very considerable vigour, are all as to the judge's treatment of the facts. As I have already indicated, the applicant has now received the appropriate benefit at the higher rate and it has been backdated. So he has succeeded in persuading the appropriate authorities that his level of disability entitles him to mobility allowance at the higher rate. But there is nothing in the papers relating to the claim for malicious falsehood that suggests to me that the judge misunderstood the material before him or failed to take it properly into account.
  27. Accordingly, I will dismiss this application. In those circumstances no question as to the provision of the transcript of the evidence arises.
  28. ORDER: Application for permission to appeal refused.
    (Order not part of approved judgment)

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