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Cite as: [2001] NIQB 26

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McCaffery, Re Application for Judicial Review [2001] NIQB 26 (03 July 2001)

    Neutral Citation no. [2001] NIQB 26






    Judgment: approved by the Court for handing down



    (subject to editorial corrections)






    KERR J


                The applicant was a passenger on a bus driven by an employee of Ulsterbus on 28 November 1998 when it was in collision with another vehicle.  She claims that she suffered injuries as a result of the accident.  There were sixty-six passengers on the bus.  The applicant and sixty-two other passengers intimated claims against the driver and Ulsterbus.  Five claims were made by passengers of the car with which the bus collided.  His Honour Judge Rodgers was appointed to hear all claims arising from the accident.

                The applicant's case came on for hearing before the judge on 27 September 2000.  He had earlier heard a number of cases arising from the same accident.  The applicant claims that the judge had laid down certain criteria for the recovery of compensation, based on his experience of the earlier cases.  In particular, according to the applicant, the judge had indicated that he would not allow compensation in respect of alleged back or neck injuries unless it could be shown that the plaintiff had suffered from a pre-existing condition of the neck or back or that there were degenerative changes in those areas which pre-disposed the plaintiff to injury. 

                Counsel for the applicant invited the judge to discharge himself from hearing the applicant's case on the basis that he had come to a conclusion based on evidence given at earlier hearings in which the applicant had not participated.  The judge refused to discharge himself and the applicant seeks judicial review of that decision.


    The evidence at the earlier hearings

                It was accepted by Ulsterbus that its driver was at fault in relation to the collision.  The only issue on liability in those cases that were contested was whether the plaintiffs had suffered injury as a result of the accident.

                Three cases were heard together on 13 September 2000.  The three plaintiffs, the bus driver and the driver of the car gave evidence as did two consultant orthopaedic surgeons, T C Taylor FRCS for the plaintiff and Richard Wallace FRCS for the defendants.  Engineers on behalf of both the plaintiffs and the defendants also gave evidence.  It was established that both vehicles involved in the collision had been stopped at a junction shortly before impact and had moved only some nine to ten feet before the collision occurred.  At the time of impact the speed of the bus was no more than 10 miles per hour.  It was probably moving at about 4 mph.  The respective weights of the vehicles were 12 tonnes (the bus) and 1 tonne (the car).

                Mr Taylor gave evidence that it was not believable that sixty-three passengers in the bus could have been injured in such a low speed collision.  Both he and Mr Wallace agreed that a healthy person should not suffer injury in a collision of this nature but that a person with long-term arthritis or a recent injury to the neck or back might suffer injury to those areas.


    The hearings on 27 September 2000

                Patrick Coogan had been a passenger on the bus.  His claim for damages as a result of injuries sustained in the accident was heard by Judge Rodgers on 27 September 2000.  The same legal team that appeared for the applicant represented him.  Mr Coogan had suffered an injury to his eye and a laceration of his elbow.  It was claimed that he had also suffered back and neck injuries.  Compensation was awarded in respect of the injuries to the eye and elbow but refused in respect of the alleged injuries to the neck and back.  The judge explained his reasons for not awarding compensation for the back and neck injuries in his first affidavit.  He said that the agreed medical reports "did not record any objective injury to the back or neck".

                One of the medical reports that had been agreed in Mr Coogan's case was that of Mr McCullough FRCS.  The report contained the following passage: -

    "He complains of pain in his back as noted above.  Examination shows that movements are restricted to between less [than] half normal and over three-quarters normal and are all painful.  This has been a soft tissue injury to the muscles and ligaments around the thoracic and lumbar spines.  He is likely to have trouble for another few months at least.
    He complains of pain in his neck as noted above.  Examination shows that movements are slightly restricted and are all painful.  This has been a whiplash injury to his neck.  He is likely to have trouble for another few months at least.  In some patients symptoms can persist for up to eighteen months."

    The agreed medical report provided by the defendants was from Richard Wallace FRCS, consultant orthopaedic surgeon.  In his comment on the plaintiff's injuries, Mr Wallace stated: -

    "This gentleman would appear to have suffered an upsetting experience and jolting strain to the neck and lower back and a minor cut to the extensor aspect of the right elbow as a result of the bus accident detailed above.  [The details recorded by Mr Wallace were that the plaintiff had been jerked forward by the collision but not out of his seat and had felt shaken but had not suffered pain.  The following day he became aware of pain in the neck and lower back.]  A gradual onset in increase (sic) in neck and lower back symptoms would be consistent with a jolting strain in this area.  In general in an incident where he was not thrown out of his seat one might reasonably accept that he could have suffered symptoms at these sites, but symptoms would usually be expected to resolve relatively quickly and would not be expected to persist."

    The injury to the plaintiff's eye (for which he was awarded compensation) was in the nature of degenerative changes to the vitreous.  Professor Archer attributed these changes to the "acute movements of the head following the bus/car impact".

                On behalf of the applicant it was claimed that Professor Archer had given evidence that the damage to the vitreous base of Mr Coogan's eye had been caused by the "flinging backwards and forwards of the head, typical of a whiplash injury".  The judge did not accept this account of the evidence.  He suggested that Professor Archer had accepted that the plaintiff could have sustained the injury to the eye by the "exertion of minor force on it".  He concluded that the injury to the eye was the result of a minor impact and he was not satisfied from the agreed medical evidence of Mr McCullough and Mr Wallace that Mr Coogan had suffered any orthopaedic injury. 


    The approach to be taken to cases heard after 13 September 2000

                The judge asserted that he had decided Mr Coogan's case on the basis of the evidence adduced, although he accepted that Mr Ringland QC (who appeared for the defendants) might have made reference to the evidence given in the earlier cases on 13 September 2000.  This assertion must be viewed in the light of what he has described as an "indication" that he gave, following the hearing of the cases on 13 September, that "unless there was a medical pre-disposition to back or neck injury on the part of the plaintiff and in the absence of any objective finding of such injury" he would not be inclined to award damages in respect of claimed orthopaedic injury to those areas.      

    It appears to me that the evidence that the judge had heard on 13 September 2000 must have dictated this stance.  One can understand why, having heard that evidence, the judge would be sceptical about the many claims of passengers to have suffered orthopaedic injuries.  The difficulty in his bringing that approach to subsequent cases, however, is that plaintiffs in later cases had not had the opportunity to participate in the earlier debate as to the level of force that would be required to cause injury.  That difficulty could not be overcome, in my opinion, by the judge signalling to parties his provisional view.  Since they had not been present or represented at the earlier hearing, they could not be required to overcome a hurdle to obtaining compensation which they had not had a chance to clear at the time that the hurdle was erected.  Plaintiffs in later cases were entitled to expect that the judge would decide their claims solely on the evidence that he heard in their cases without preconceptions from earlier hearings. 
    In the case of Mr Coogan, the agreed orthopaedic evidence was that the plaintiff had suffered injury to his neck and back as a result of the accident.  Examination by Mr McCullough revealed restriction of movement in both areas.  His report, unless nullified by contrary opinion, amounted to objective evidence of injury.  Clearly, the only evidence available to the judge that cast doubt on Mr McCullough's conclusion was that given on 13 September.  The conclusion is inescapable that the judge decided that Mr Coogan should not receive compensation in respect of his orthopaedic injuries because of the evidence that he had heard in the earlier cases.  But Mr Coogan was not present when that evidence was given and therefore had not had an opportunity to influence the judge's views on it. 

                 Those views ought to have been put aside by the judge.  He should have approached Mr Coogan's case without regard to them.  By taking into account evidence that the plaintiff had not had the opportunity to challenge the judge fell into error.  His proposal to conduct the applicant's case on the same basis was likewise flawed.



                 As Carswell LCJ observed in Re Belfast Chamber of Trade and others [2001] unreported, the basis of the rule against bias is usefully summarised in de Smith, Woolf & Jowell, Principles of Judicial Review, para 11-001:

    "Procedural fairness … requires that the decision-maker should not be biased or prejudiced in a way that precludes fair and genuine consideration being given to the arguments advanced by the parties.  Although perfect objectivity may be an unrealisable objective, the rule against bias thus aims at preventing a hearing from being a sham or a ritual or a mere exercise in 'symbolic reassurance', due to the fact that the decision-maker was not in practice persuadable.  The rule against bias is concerned, however, not only to prevent the distorting influence of actual bias, but also to protect the integrity of the decision-making process by ensuring that, however disinterested the decision-maker is in fact, the circumstances should not give rise to the appearance or risk of bias."

    and at para 11-002:

    "Even though the decision-maker may be scrupulously impartial, the appearance of bias can itself call into question the legitimacy of the decision-making process."

                 It need hardly be said that the bona fides of the judge have never been questioned in these proceedings.  By allowing his experience in the earlier cases to influence his approach to the adjudication of the merits of the applicant's and Mr Coogan's cases, however, he became "in practice [not] persuadable".  There can be no doubt that, had he not heard the earlier evidence, the judge is bound to have concluded in Mr Coogan's favour on the orthopaedic aspect of his claim.  That he had suffered an injury to his back and neck was not disputed (indeed, it was accepted) by Mr Wallace.  Although he did so for perfectly proper motives, the judge, by allowing his views to be formed by the earlier evidence, was biased (in the technical sense) against Mr Coogan.

                 Moreover, there was, in my estimation, an inevitable appearance of bias against later plaintiffs by the judge's pronouncement that he would not be disposed to award compensation to those who failed to establish a pre-disposition to back or neck injury or to demonstrate an objective finding of such injury.  As I have already said, this erected an additional hurdle for plaintiffs that would not have arisen but for evidence given in proceedings to which they were not a party and whose outcome they had no opportunity to influence.  This inevitably gave rise to a "real danger of bias" –R v Gough [1993] AC 646.

                 Confronted by the dilemma created by his reliance on evidence given in the earlier proceedings, the judge should have recognised that it was inappropriate that he should continue to hear the applicant's case.  In my judgment, therefore, he ought to have acceded to the application that he should recuse himself.


    Article 6

                 In light of my conclusion (on the basis of the law as it existed before the coming into force of the European Convention on Human Rights) as to the course that the judge ought to have taken, it is strictly speaking unnecessary to consider the impact of Article 6 but since submissions were made on this point, it is appropriate that I should make some brief observations on it.

                 In Clayton & Tomlinson Human Rights Law, the authors deal with the requirements of impartiality under Article 6 at para 11.225:

    "For the purposes of Article 6(1) the existence of impartiality must be determined according to two tests:
    '… a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect' – Fey v Austria (1993) 16 EHRR 387 para 28
    In order to satisfy the subjective test, the applicant must show that the tribunal in fact had personal bias against him.  The objective test requires a finding, not of actual bias but of 'legitimate doubt' as to impartiality that can be 'objectively justified' – Hauschildt v Denmark (1989) 12 EHRR 266."

    The concept of 'legitimate doubt' as to impartiality would appear to be broader than the 'real danger' of bias test enunciated in Gough.  The difference between the two tests was recognised in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 2 WLR 870, 884-885 and Seymour and Emmerson on Human Rights Practice, at para 11.312 while recognising that the application of either test will frequently lead to the same result, clearly identify the Article 6 test as being less stringent.

                 It appears to me that the objectively justified 'legitimate doubt' as to impartiality test will now have to be substituted for the 'real danger' of bias test where Article 6 rights are engaged, as in the present case.  For the reasons that I have earlier given, the judge's approach to the applicant's case gave rise to a real danger of bias; a fortiori, his decision to proceed with her case was in breach of the applicant's Article 6 rights.



                 Since I have concluded that the judge ought to have discharged himself, I will grant an order of certiorari quashing his decision to proceed to hear her case.  In the circumstances, it is unnecessary to make the orders of mandamus or prohibition that have been sought.  Clearly, the case should be heard by another judge.


    KERR J

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