Mason v Plysu

On an application for permission to appeal in a personal injury claim involving chronic pain and alleged malingering, a trial judge may assess expert medical evidence against factual findings reached after hearing all the evidence. There is generally no duty to make findings incrementally and recall experts for further questioning. Recall may be necessary in an exceptional case, but not where the judge has conscientiously explained the findings and assessed the evidence as a whole. An unreliable claimant may nevertheless be genuine and not malingering. A judge may draw reasonable factual inferences on the balance of probabilities. Permission should be refused where the proposed grounds disclose no arguable error.

The claimant sought damages after slipping and falling during her employment with the defendant on 3 August 1993. Liability had been admitted to the extent of 95 per cent. The trial concerned causation and quantum, principally whether the claimant suffered from chronic pain disorder or was malingering.

Mr Recorder IS Fairwood found that she suffered from chronic pain disorder attributable to the accident, although he made several findings favourable to the defendant, including that her symptoms and care claim were exaggerated. The defendant applied for permission to appeal, alleging mishandling of the medical evidence, inadequate reasoning, and errors concerning video evidence, the existence of a back injury and the diagnostic criteria. The central question was whether those grounds disclosed an arguable case warranting an appeal or retrial.

1. Permission refused. The criticisms of the Recorder’s judgment did not disclose an arguable case that the trial had been conducted improperly or that a retrial was required.
2. A trial judge may generally reassess expert medical evidence in light of the factual findings made after hearing all the evidence. There is no general duty to make findings of fact as the evidence unfolds and then recall expert witnesses for further questioning on those findings. The possibility of recalling experts in an exceptional case remains open, but this was not such a case.
3. The Recorder had explained his reasons and was entitled to prefer the claimant’s medical evidence to that of the defendant. The evidence was to be assessed as a whole. The fact that the claimant was unreliable in many respects did not require the conclusion that she was malingering. The Recorder was entitled to find that she suffered from chronic pain disorder and that it was attributable to the accident.
4. The objections concerning Dr Britto’s evidence, the video evidence and the diagnostic criteria disclosed no arguable defect. The Recorder was also entitled to infer, on the balance of probabilities, that the claimant had sustained a minor soft-tissue contusion to the lower spine when she fell, notwithstanding his rejection of her evidence about when she first complained of back pain.
5. The application for permission to appeal was therefore refused. The order included costs in the application.

• Court of Appeal (Civil Division): Lord Justice Pill heard the respondent’s inter partes application for permission to appeal and refused it.
• Trial court: Mr Recorder IS Fairwood gave written judgment on 17 September 2001, finding that the claimant suffered from chronic pain disorder attributable to the accident and determining causation and quantum.