Cooper v Reed & Anor

On an appeal by rehearing, an appellate court should not retry factual issues from transcripts or disregard the trial judge’s assessment of witnesses and experts, particularly where the judge saw and heard them. Fresh evidence is admissible only after applying the discretion under CPR Rule 52.11(2), with the principles in Ladd v Marshall remaining relevant. A claimant’s anger after a horrifying accident may coexist with horror and does not necessarily prevent a diagnosis of post-traumatic stress disorder. Loss of earnings attributable to imprisonment for the claimant’s subsequent criminal acts is not recoverable where the conduct remains legally attributable to the claimant, notwithstanding that the defendant’s wrongdoing contributed to his vulnerability.

The claimant recovered damages for psychiatric injury and loss of earnings after a road accident caused by the defendants’ negligence. The first damages assessment was set aside on an earlier appeal and the matter was retried before HH Judge Medawar QC in the Central London County Court.

The judge accepted that the accident had triggered post-traumatic stress disorder and awarded £482,450, including past and future loss of earnings. The defendants challenged the factual findings, sought to adduce further evidence concerning the claimant’s criminal proceedings, disputed the diagnosis, and argued that loss of earnings during the claimant’s imprisonment should be excluded. The central issues were the proper appellate approach to factual findings, the admission of fresh evidence, the PTSD diagnostic issue, and the recoverability of earnings lost during imprisonment.

1. Appeal partly allowed. The judge’s factual findings and assessment of the medical evidence were upheld. Except for the prison period, the award was not varied.
2. Although the appeal proceeded by way of rehearing, the court could not retry the case from the transcripts. The trial judge had seen and heard the witnesses, including the experts, and his assessment of their weight had to be respected. The defendants had not shown grounds for reversing the findings that the claimant was broadly truthful, that the accident triggered his psychiatric disorder, and that he had not worked thereafter.
3. Under CPR Rule 52.11(2), the court had a general discretion to admit fresh evidence. The principles reflected in Ladd v Marshall remained relevant. The proposed evidence concerning the claimant’s criminal appeal could have been obtained with reasonable diligence and would probably not have materially affected the result. It was therefore refused.
4. The judge was entitled to accept the evidence that the claimant suffered PTSD. The accident was sufficiently horrifying, and anger was not inconsistent with horror. The court saw no proper basis for speculating about an alternative cause of the claimant’s condition where the evidence established a convincing trigger event.
5. The award for loss of earnings during the claimant’s nine months in prison had to be deducted. The court was bound by Clunis v Camden and Islington Health Authority: the claimant’s psychiatric vulnerability did not excuse the criminal acts for which he was imprisoned. No further reduction was justified merely because his condition created a risk of future offending.

• Central London County Court: The first assessment awarded £90,834. A later retrial before HH Judge Medawar QC resulted in an award of £482,450.
• Court of Appeal: The earlier appeal had ordered a new assessment of damages. On this appeal, the court allowed the appeal only to the extent of deducting nine months’ loss of earnings during imprisonment, and otherwise dismissed it. The claimant received his costs of the appeal.