A1/01/2043, B3/01/2806
Neutral Citation Number: [2002] EWCA Civ 1475                               
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
EMPLOYMENT APPEAL TRIBUNAL
(MR JUSTICE LINDSAY)
Royal Courts of Justice 
Strand 
London, WC2 

Friday, 4 October 2002
 
B E F O R E:

LADY JUSTICE HALE 

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ANIRAH HELLEN
Claimant/Appellant
‑v‑
 
ASDA STORES LIMITED 
Defendant/Respondent 

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(Computer‑Aided Transcript of the Palantype Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
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The Applicant appeared in person with a Mackenzie friend, Dr Adoko.

The Respondent did not appear and was not represented.
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J U D G M E N T
1.	LADY JUSTICE HALE: I have before me two applications for permission to appeal. The first, number 2001/2043, is an application for permission to appeal against the decision of an Employment Appeal Tribunal on 3 August 2001, dismissing the applicant's appeal against a decision of the Employment Tribunal dated 12 December 2000 (the employment case). The second, 2001/2806, is for permission to appeal against the order of His Honour Judge Marr‑Johnson dismissing her appeal from an order of District Judge Trent, dated 12 December 2001 (the personal injury case). It is highly relevant in both cases that the applicant suffers from multiple health problems, principally type 2 diabetes and thyroid disease. She also has heart problems and has become ill during four of the relevant court hearings, before the Employment Tribunal, before His Honour Judge Marr‑Johnson and twice before the Court of Appeal. 
2.	The first application was first listed on 6 December 2001. It was adjourned because the applicant was taken ill during the hearing. It was then listed with the second application on 14 May, 2002. They were adjourned the day before the hearing on condition that the applicant filed a medical certificate. They were listed again for 9 July 2002. On that day the applicant again became ill. She became so ill that she was taken to hospital and remained there as an in‑patient for three days. I made it plain on that occasion that it would have to be the last adjournment of these two applications. They are the applicant's own applications in cases which have already been decided by two tribunals before this, in each of them against her. They cannot go on indefinitely. 
3.	Fortunately, the applicant has been able to obtain the assistance today, as her Mackenzie friend, Dr Adoko. At her request, I have allowed him to address me on the second application on her behalf. He does not speak for her, or assist her, in the first application, but she has been able to say a few words on her own behalf on that matter. I have, of course, read the papers. 
4.	I deal first with the employment case. The Employment Appeal Tribunal dismissed the applicant's appeal from a decision of an Employment Tribunal sitting at Stratford. On 12 December 2000 the Employment Tribunal dismissed Mrs Anirah's claims for race, sex and disability discrimination in respect of her dismissal by Asda and for race and disability discrimination by subjecting her to a detriment. It upheld one allegation of sex discrimination by subjecting her to a detriment and invited the parties to agree upon an appropriate remedy. Only the findings as to dismissal are the subject of the proceedings before me. 
5.	Mrs Anirah was employed by Asda at its Isle of Dogs' store from August 1988 to August 1998. In 1996 she was appointed warehouse manager, a position of some responsibility which pays tribute to the work and ability which she must previously have shown in her employment. 
6.	On 3 July 1998 she was observed by a security camera taking a bag of frozen chicken pieces from a cage outside her office. It was accepted that these were spoiled and that produce manager had told Mrs Anirah to throw them away. She then went shopping in the store for some 10 to 15 minutes, she paid for other items, but was stopped in the car‑park by a security guard. She told him that the chicken was to feed the birds. She made no mention of feeling unwell. Asda suspended her pending investigation. They conducted detailed investigative and disciplinary hearings and there were two appeals. The outcome was that Mrs Anirah was dismissed for theft. 
7.	She applied to the Employment Tribunal. She claimed unfair dismissal, but was found out of time. Accordingly, the hearing was limited to her complaints of discrimination, both during her employment and in relation to her dismissal. She was represented by counsel before the tribunal. The tribunal reviewed the evidence in detail and made factual findings. The tribunal concluded that Mrs Anirah had not, as she suggested, on previous occasions taken food home and paid for it the next day. They also concluded that she had not told the security guard that she would pay for the food the next day. They concluded that her taking of the chicken was not linked in any way to her disabilities. They pointed to a discrepancy in what she had told the security guard, the disciplinary hearing and then the tribunal about the reason why she had taken the chicken, whether to feed the birds nor the animals at a city farm. The Employment Tribunal also found that Mrs Anirah had also been represented by a colleague at the investigatory hearings by Asda and they had been shown the security video. Mrs Anirah had said that she had left some of the chicken in the freezer so that the provisions manager could assess its value, but by the time of the hearing the freezer had been cleaned out.
8.	The Employment Tribunal found that Asda treated any taking of company property was a serious offence justifying dismissal, and would have done so whatever Mrs Anirah's race or sex. It rejected the argument that two other employees were treated differently in relation to comparable offences. It decided that Mrs Anirah did not receive less favourable treatment than she would have received if she had been white and/or male. It was also accepted that Asda had made all the appropriate allowances for her disability in its treatment of her offence. Therefore they rejected her claims for discrimination in relation to her dismissal. 
9.	The Employment Tribunal also rejected most of the complaints of discrimination during her employment. It did uphold one complaint in relation to the store manager telling her that women did not make good warehouse managers. . 
10.	There are two other matters to note about the Employment Tribunal hearing. It took place with a considerable gap of 14 months between the four days originally set aside for the hearing and the further two days which proved to be needed. This was due to the illness of one of the members of the Employment Tribunal and the availability of the parties. More relevantly, for these purposes, Mrs Anirah suffered a hypo at the conclusion of her evidence after examination in chief, cross‑examination and reexamination and while being questioned by the tribunal. The hearing was adjourned until she recovered and the Chairman went back through the previous five minutes of questions to check that Mrs Anirah was happy with her answers. 
11.	Mrs Anirah sought to appeal to the Employment Appeal Tribunal but that tribunal dismissed her appeal at a preliminary hearing lasting half a day. It commented on the quality of the Employment Tribunal's reasons. It reviewed her complaints as to the Employment Tribunal's factual findings and concluded that they disclosed no error of law. Her complaints about the procedure related to matters which were in her and her counsel's control. The Employment Appeal Tribunal concluded that the Employment Tribunal had dealt fairly with her hypo at the conclusion of her evidence. 
12.	To this court, Mrs Anirah puts forward ten possible grounds of appeal: 
	1. The staff were allowed to take spoiled chicken home. 
	2. The finding that she kept waiting the person who was to give her a lift home while she went shopping in the store was unsupported by evidence. 
	3. The finding that she had put a bag of chicken in the freezer was unsupported by the evidence.
	4. She had put the rest of the chicken in the chiller so as to be able to agree a price for what she had taken, but Asda had thrown it away. The tribunal did not appreciate the significance of that. 
	5. There was no evidence that Mrs Anirah had changed her statement, but the Employment Tribunal found that she had. 
13.	Those five points are all factual findings by the Employment Tribunal on the basis of the evidence before them. There is no right of appeal to the Employment Tribunal or to this court on a point of fact and there is, therefore, no basis to go behind the Employment Tribunal's findings. 
14.	Mrs Anirah then argues that:
	6. Asda had lost all the documents that she would have relied upon. 
	7. She was not allowed representation during Asda's investigation. 
	9. She was not allowed to see the video from the security camera. 
15.	These are all matters relating to Asda's processes which are are of very limited relevance to the Employment Tribunal's decision and, in the case of the last two points are contrary to the express findings of fact of the Employment Tribunal. 
16.	Finally, while she was having a hypoglycaemic attack and that the Employment Tribunal promised to recall her to give evidence in answer to the points raised by Asda concerning her job performance, but did not do so. Those points related to the procedure followed before the Employment Tribunal. 
17.	The Employment Appeal Tribunal dealt fully with the first points. She does not seem to have raised the final point with the Employment Tribunal, but it is a point which should have been taken at the time. There is nothing in the material before me to support it. 
18.	The conclusion has to be that, however harsh it may seem, and it will seem harsh to many people to sack a person for stealing mouldy chicken which was to be thrown away, this was not an unfair dismissal claim. It was a discrimination claim. There was no evidence that Mrs Anirah was treated differently from how she would have been treated if she had been white or a man. These are all arguments about the factual findings of the Employment Tribunal or its procedures. They have already been dealt with by the Employment Tribunal and disclose no point of law which would have any real prospect of success in this court. 
19.	I have to conclude that there is no basis upon which I can give permission to appeal in the employment case as an appeal would have no real prospect of success.
20.	I turn to the personal injury case. The application is technically to make a second appeal from the decision of His Honour Judge Marr‑Johnson, sitting at the Mayor's and City of London County Court on 2 October 2001. The claimant's application was to replace her medical expert witness in personal injury proceedings and also for an adjournment of the trial. The application to replace her medical expert witness was first heard by District Judge Trent on 21 November 2001. He dismissed it, but gave her permission to appeal. Judge Marr‑Johnson dismissed her appeal. District Judge Trent also directed that the trial should proceed immediately after the appeal on the 12 December 2001. 
21.	The claimant claims damages from her former employer, Asda Stores Limited, in respect of an injury to her arm and shoulder sustained while she was at work in September 1996. The proceedings were commenced in August 1999 and allocated to the fast track. Liability was agreed at 90 per cent in the claimant's favour. In November 2000 each party was given permission to rely upon the evidence of one orthopaedic expert. 
22.	The trial on quantum was first listed for 18 January 2001. At that hearing the claimant made an application to obtain and rely on the further expert evidence of a consultant physician, which would deal with the implications of the claimant's diabetes. That application was granted and the trial was adjourned to 7 June 2001. Each party therefore instructed a consultant physician, Dr Boucher for the claimant and Dr Burden for the defendant. Expert reports were prepared. On 23 March 2001 the physicians agreed a joint statement. That statement has featured prominently in the application to this court. 
23.	On 7 June 2001, however, the trial was adjourned yet again because the claimant, who was now unrepresented her solicitors having applied to come off the record, was dissatisfied with the joint statement. At a hearing on 27 July 2001 she complained that the doctors had not seen all the relevant records. At that hearing, District Judge Trent ordered that there should be disclosure of further medical records and the preparation of a further report on the basis of this evidence. This resulted in a letter, dated 30 September 2001, from Dr Boucher who had conferred with Dr Burden after taking the new evidence into account. Despite the new evidence, there was no material change in their recommendations and opinions. 
24.	I note that Dr Boucher's letter refers to three folders of photocopied notes. She states that she has read through these notes in order to determine whether they contain any new material that she would not have seen when preparing her report for the claimant's previous solicitors and when preparing her agreed report for the court with Dr Burden. She goes on to say that the notes photocopied to her on 20 September 2001 contained two items which were not there when she first reviewed the records: first, the records of attendance at the physiotherapy department at the Royal London Hospital, Mile End; and secondly, the copy of notes at the Accident and Emergency Department at the Royal London Hospital. However, she points out that she had accessed both of these sets of notes herself and had read them before preparing her report. She believes that it was she herself who had, through her own efforts, got them into Mrs Anirah's medical records. She could not find any other notes which appeared unfamiliar that she might not have seen previously. 
25.	The claimant then made her present application to replace Dr Boucher and to adjourn the trial date. In making that application she made seven points about Dr Boucher's and Dr Burden's joint report. She complained that they referred to there being no record of an attendance at the Accident and Emergency Department at the Royal London Hospital on the day of the accident. She complained that she did not attend then at all; she did not attend until some considerable time later, so, if they were looking for notes of such an attendance they were looking for something that did not exist. Secondly, she complained that the notes of her attendance at the physiotherapy department at the Royal London Hospital were found but they were not properly taken into account because they showed that physiotherapy and ultra‑sound was tried for some time. Neither of them worked and that was why she eventually had to be hospitalised. 
26.	Thirdly, and Dr Adoko stresses that this is the most important point on her behalf, the report says:
“In our opinion it is impossible to adduce the exact extent of the effects of the accident on Mrs Anirah's diabetes because there are no records to be found detailing the day‑to‑day situation as regards her blood sugar levels in her clinic notes.”
27.	The argument is that those notes have now been obtained and, therefore, the opinions expressed should be based in the information in those notes and not upon speculation and guess‑work. The report does, nevertheless, conclude that it is extremely likely that the accident worsened the diabetes, in terms of increasing blood sugar levels by 20 per cent, over the period of pain and reduction in range of movement in the shoulder resulting from the accident. So they did form an opinion that the accident will have had an effect upon her diabetes. 
28.	A further point is that there was no record relating to her right arm; no records of the effect of the diabetes to back up the suggestion that there was a 20 per cent increase in her blood sugar levels, because the record suggested that there had been a much greater increase in the sense that, when she was admitted to hospital in April 1997, her blood sugar level was considerably higher than it had previously been. April 1997 was seven and a half months after the accident. She complains that her condition deteriorated to such an extent that she had to be hospitalised after those seven and half months. Finally, she says that the doctors should have given greater weight to looking at the long term effects of her unawareness of her symptoms. Overall, it is suggested that the doctors had speculated as to the effects of the accident upon her diabetes, stating an absence of records when in fact such records were available. 
29.	District Judge Trent pointed out that this was an unusual case because those who represented Mrs Anirah fought tooth and nail to get Dr Boucher on board as her expert and pressurised the court to do so:
“I am now told that Mrs Anirah does not like Dr Boucher's report. It must be implicit that, if Mrs Anirah fought so hard to get the report admitted then she must have had confidence in Dr Boucher as an expert on her behalf.
There is no question but that the experts are required to give their medical opinion. It is unfair and misconceived criticism that it is guess work. It must be based on the history but it is a professional opinion. It must be subjective, it cannot be tested objectively. The fact that the opinion falls short of what she wants falls short of what is needed. There is no evidence of further missing records. The assessment of damages needs to be tried.”
30.	Those were the reasons why District Judge Trent dismissed the application for a new expert. Hence the trial was listed with the appeal for 12 December 2001. On that date Judge Marr‑Johnson dismissed the appeal and indicated that the trial should go ahead. He noted that the claim was modest, but all four doctors in the litigation had agreed on their analysis of the claimant's condition and the case had been adjourned twice. He was far from convinced that any new material would come to light to make it valid for a new expert to be instructed. As the claim was modest, the cost of further expert's report would be not be proportionate. He was not prepared to put off the trial for a third time. However, the trial was, and is still, postponed because the claimant had an attack at that point in the proceedings and was taken to hospital. The trial has been adjourned pending this application. 
31.	In her grounds of appeal the claimant relies on three points: first, that District Judge Trent had no jurisdiction to order that the appeal should be heard on the same day as the case; secondly, that his order was unfair and operated to bind the hands of Judge Marr‑Johnson; and, thirdly, that the decisions of both judges were based on a fundamental error which made it contrary to Article 6 ‑‑ namely that the judges thought that the claimant wished to challenge Dr Boucher's ability to give opinion evidence. In fact the challenge was as to whether the witness could base her opinion on “figments, guesswork or theory” directly contrary to the medical records. 
32.	In his argument before me, Dr Adoko has focused on the seven points of attack, which I have already listed, upon the joint medical report dated 23 March 2001 and, in particular, the alleged absence of records relating to the effect of the accident upon the claimant's blood sugar levels. He argued that there were additional records obtained which showed what that effect had been and that these should have been taken into account. He handed me three bundles of photocopied records. It is not clear whether these were the additional records disclosed as a result of District Judge Trent's order of 27 July 2001, or whether they are further records; I am inclined to think they are the same ones, because they would appear to conform to the description of the further records given in Dr Boucher's letter. On a quick look through, they relate to a great many dates in the 1980s, some in the early l990s and from the middle of 1997. I have not found any records dating from just after the accident in September 1996 until the claimant's admission to hospital seven and half months later. It was to that period which the doctors were referring when they were giving their opinion. There is, therefore, nothing in any of those points which is sufficient to support an application to change the doctor. The reasons given by District Judge Trent for not changing the doctor are entirely sensible and cogent. 
33.	If it be the case that there are indeed fresh records obtained which are different from the records which Dr Boucher had when she wrote her letter of 30 September 2001, then there is nothing to stop those additional records being put to Dr Boucher and her being asked whether there is anything in them which affects her opinions. In order to do that there would have to be evidence as to when these new records were obtained and pointing to those pages in the records which are alleged to add to the information which was before Dr Boucher and Dr Burden when they made their report and gave their additional opinion given in that letter. 
34.	This is a second appeal. I can only give permission to appeal if it raises an important point of principle or practice or there is some other compelling reason for this court to hear an appeal. There is certainly no compelling reason to hear an appeal against the application to replace Dr Boucher as the claimant's medical expert, very far from it. 
35.	As far as the adjournment of the trial is concerned, that is now water under the bridge. The trial did not go ahead and, to that extent, the claimant's objective was secured. There is on that ground also no reason to give permission to appeal. The decision to hold the two hearings together was eminently sensible. Had the application to replace the doctor succeeded the trial would have been adjourned. 
36.	For all those reasons, I see no basis to find that this applicant has been treated unfairly in the quality of the reasons or denied access to the court. She has access to the court; if she has good points to put to the doctor, they can be put to the doctor. It is now high time that this matter was brought to trial and to a conclusion. The conclusion will be that the claimant achieves an award of damages for her injuries suffered in an accident which took place a very long time ago.
37.	These applications are therefore refused. I will direct that a transcript of this judgment be prepared and made available at public expense to the parties. 
Order: Applications refused. Copy of Transcript to be made available at public expense to the parties.