Thatcher v Telewest Communications London South Limited

An appellate court should not interfere with a trial judge’s decision merely because it has misgivings about the result or considers the conclusion surprising. Intervention requires an absence of evidence capable of supporting the conclusion, or a procedural or reasoning flaw making the decision wrong in law or unsustainable on the evidence. Difficulties arising from inadequate legal representation do not themselves justify appellate intervention. Where a trial judge has accepted expert evidence on causation and the conclusion was open on the evidence, permission to appeal should be refused.

The applicant claimed damages from his employer for a back injury sustained while pulling a heavy cable. The County Court awarded approximately £20,700 for the physical injury and related losses, but made no award for psychological injury or consequential loss of earnings, finding that the psychological condition pre-dated the accident and caused the employment difficulties.

The applicant sought an extension of time and permission to appeal, challenging the treatment of the expert evidence, the assessment of causation and the amount of damages. The central issue was whether the County Court’s findings disclosed an error permitting appellate intervention.

The extension of time for applying for permission to appeal was granted. Permission to appeal was refused.

1. Appellate intervention. The Court of Appeal could interfere only if there was no evidence upon which the County Court judge could reasonably have reached his conclusion, or if a procedural or reasoning flaw rendered the decision wrong in law or unsustainable on the evidence.
2. Causation and expert evidence. The County Court judge accepted that the applicant’s slipped disc and sciatica were caused by the accident, but accepted the joint psychiatrist’s evidence that the psychological condition was a pre-existing generalised anxiety disorder and that the accident was not an operative cause of the inability to obtain employment. That conclusion was surprising, but it was open to the judge on the evidence. The judge had heard the applicant’s evidence and was entitled to assess his account and personality.
3. Challenges to the evidence. The alleged withdrawal by the orthopaedic expert of an estimate concerning a possible future injury did not undermine the decision. The judge’s conclusion rested on the psychiatric evidence and the assessment of the applicant’s actual physical disability, about which there was no substantial disagreement.
4. Misgivings and representation. The Court had concerns that the case might have been handled differently, particularly in relation to the psychiatric evidence. However, an appellate court is not a forum for correcting inadequacies or misassessments by legal advisers where the decision below is legally and evidentially sustainable. The procedural complaints disclosed no material error.

Order: application refused.

1. Court of Appeal (Civil Division): Lord Justice Potter granted an extension of time but refused the application for permission to appeal.
2. Epsom County Court: His Honour Judge Hull QC awarded approximately £20,700 for the back injury and related losses, but rejected causation of the psychological problems and made no award for consequential loss of earnings.