Vernon v Bosley (3): CA 19 Dec 1996

The plaintiff claimed damages for acute stress after failing to rescue his two daughters in an accident caused by the defendant. After the accident, he became involved in family proceedings concerning custody of other children. Medical reports used in the children proceedings suggesting an improvement in his condition had not been disclosed to the court awarding the damages. This had been on counsel’s advice.
Held: The judge must be told of a change in the Plaintiff’s prognosis which had occurred after the medical evidence had been given. The court had a remaining discretion to admit such evidence. Counsel had a professional duty to make further disclosure where there was a risk that the court might be misled.
‘where the case has been conducted on the basis of certain material facts which are an essential part of the party’s case, in this case the plaintiff’s condition at trial and the prognosis, which were discovered before judgment to be significantly different, the court is not being misled by the failure of the defendant to put before it material of which she could or should have been aware, but by the failure of the plaintiff and his advisers to correct an incorrect appreciation which the court will otherwise have as a result of their conduct of this case hitherto.’ and ‘Where there is a danger that the court will be misled, it is the duty of counsel to advise his client that disclosure should be made. There is no reason to suppose that if Mr Vernon had been so advised in this case, he would not have accepted that advice. If the client refuses to accept the advice, then it is not as a rule for counsel to make the disclosure himself; but he can no longer continue to act.’
Stuart-Smith LJ, Thorpe LJ, Evans LJ dissenting
Times 19-Dec-1996, Gazette 29-Jan-1997, [1998] 1 FLR 304, [1996] EWCA Civ 1217, [1997] 3 WLR 683, [1997] RTR 275, (1997) 35 BMLR 174, [1999] QB 18, [1997] 1 All ER 614, [1997] Fam Law 476, [1997] PIQR P326
England and Wales
See AlsoVernon v Bosley (2) CA 29-Mar-1996
The defendant had been driving the plaintiff’s daughters, but negligently caused an accident from which they died. The plaintiff was called to the accident, and claimed to have suffered post traumatic stress. The defendant said that the effect was . .
See AlsoVernon v Bosley (1) QBD 1993
The court discussed the extent to which a judge had control over the admission of otherwise admissible evidence: ‘A point comes at which literal admissibility has to yield to the constraints of proportionality . . such proportionality may in any one . .
See AlsoVernon v Bosley QBD 5-Aug-1994
The Judge may impose a schedule for the examination of witnesses if there is a severe overrun of the case at the hearing. . .
See AlsoVernon v Bosley (1) CA 8-Apr-1994
Though the judge had a right to exclude admissible evidence, it remained a balancing exercise which came down to being a matter of his discretion. Evidence might not be admitted which would involve ‘inconvenience, expense, delay or oppression’. The . .
CitedTombling v Universal Bulb Co CA 1951
Denning LJ said: ‘The duty of counsel to his client in a civil case – or in defending an accused person – is to make every honest endeavour to succeed. He must not, of course, knowingly mislead the Court, either on the facts or on the law, but, . .
CitedMulholland v Mitchell HL 1971
The House was asked whether to re-open an assessment of damages where there had been a very marked change in the injured person’s situation shortly after the trial. There was no suggestion of fraud. The Court of Appeal had decided to admit the fresh . .
CitedBlamire v South Cumbria Health Authority CA 1993
When assessing damages for losses arising through professional negligence by a school, the court arrived at a lump sum representing the loss of the opportunity to gain employment at the end of a successful period of education. The onus of proving . .

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Updated: 19 April 2021; Ref: scu.90152