McMylor v Firth Rixson Plc

In a personal injury claim, accident causation may be established where genuine pain develops from earlier accident-related symptoms, even though its precise organic cause cannot be identified. A psychological element or overlay does not automatically require additional specialist evidence where the existing medical evidence supports the finding and no alternative cause is suggested. A trial judge may rely on the claimant’s evidence when assessing functional incapacity and loss of earnings. An appellate court will not interfere with reasonable assessments of general damages, multipliers or factual findings absent a proper basis. A mitigation argument not raised or pursued at trial will not ordinarily justify criticism of the judge.

The defendant employer appealed from an order of HHJ Waine in Mansfield County Court awarding the claimant £38,063.90, representing 75 per cent of assessed damages after liability had been compromised on a 75/25 basis. The claimant had suffered a crush injury to his lower leg, followed by numbness, hypersensitivity and later pain and swelling. The fracture and knee injuries had resolved, but the ongoing symptoms prevented overtime work. The appeal concerned causation, the need for further psychological evidence, general damages, past and future overtime loss, prescription costs, and mitigation.

1. The appeal was dismissed unanimously. Jonathan Parker J, with whom Kennedy LJ agreed, held that there was ample evidence for the finding that the claimant’s shin pain was caused by the accident. The claimant’s pain was accepted as genuine. Fraser-Moodie’s evidence supported development from accident-related numbness to hypersensitivity and then pain. No alternative cause had been suggested.
2. Further expert evidence on psychological overlay was unnecessary. Both medical experts recognised that physical pain might contain a psychological element and considered that possibility in this case. An adjournment to obtain additional evidence would have been unjustified, particularly as none had been sought.
3. The finding that the claimant could not work overtime was based on his own evidence. The judge was entitled to accept it. The judge was also entitled to award £15,000 for general damages, which fell within a reasonable range, and to use a multiplier of 11 for future overtime loss. No sufficient basis existed for appellate interference with those assessments or with the prescription-cost awards.
4. The mitigation argument concerning lighter work had not been raised or pursued before the trial judge. The judge could not be criticised for failing to address it.
5. The judgment for the claimant therefore stood. Interest of £1,126.58 was awarded at the judgment rate, with costs in favour of the respondent.

• Court of Appeal (Civil Division): Permission to appeal was granted by Hale LJ on 7 June 2002. The appeal was dismissed, with interest and costs awarded to the respondent.
• Mansfield County Court: HHJ Waine entered judgment for the claimant on 15 March 2002 in the sum of £38,063.90, following the compromised apportionment of liability.