Mullins v Gray

In a claim for physical pain and suffering caused by an injury, the claimant may recover for pain heightened by an enduring trait of anxiety or unusual sensitivity. The eggshell skull principle does not depend on a rigid requirement for medical evidence proving that trait. A requirement for medical evidence supporting psychiatric injury claims does not govern a claim for actual physical pain. The court must assess the claimant’s evidence and determine causation in the ordinary way. An appellate court may substitute its own damages assessment where the trial judge went seriously wrong and the evidence was fully canvassed, making remittal unnecessary.

A driver admitted liability for a rear-end collision that caused the claimant a whiplash injury. The county court found that anxiety and depression heightened her pain, but awarded £12,900 globally, limited loss of earnings to six months and made no award for future loss. The claimant appealed, arguing that general damages and loss of earnings had been assessed too low. The respondent relied on the absence of a recognised psychiatric disorder and supporting psychiatric medical evidence. The central issue was whether physical pain caused by the injury remained compensable when heightened by psychological susceptibility, and how damages should be reassessed.

1. Appeal allowed. The Court of Appeal, in a unanimous judgment, set aside the county court’s assessment and substituted awards of £20,000 for pain and suffering, £34,000 for loss of earnings to trial, and £13,000 for future loss of earnings. Interest was payable on the first two sums but not on the future-loss award.
2. Physical pain and heightened susceptibility. Longmore LJ held that the claim was for actual pain and suffering caused by the whiplash injury, not for psychiatric injury. The fact that an enduring trait of anxiety or unusual sensitivity heightened the claimant’s perception of pain did not alter the character of the claim. The tortfeasor took the victim as found. There was no rigid rule requiring medical evidence to establish the particular trait.
3. Psychiatric injury distinguished. A claim for psychiatric injury did require supporting medical evidence. Arrowsmith v Beeston addressed that issue, but was not applicable to a claim for actual physical pain and suffering. The claimant’s evidence could be assessed in the ordinary way, with causation determined on the evidence. The medical reports proceeded on the basis that the continuing pain was caused by the accident, and there was no realistic alternative cause.
4. Error in the original assessment. The trial judge had been deflected by the absence of a recognised psychiatric disorder and had failed to give proper weight to the claimant’s actual pain and to the psychiatric aspect of its effect on her functioning. Gage LJ agreed that this was an eggshell skull case and that the claimant was entitled to compensation for the heightened pain and resulting losses.
5. Appellate reassessment and costs. Because all relevant matters had been canvassed at trial, the Court of Appeal was in as good a position as the trial judge to assess damages. Although appellate interference with general damages is exceptional, the original figure was seriously too low. The appellant received indemnity costs of the action from 21 February 2004 and standard costs before that date, £25,000 on account, and appeal costs summarily assessed at £20,506.89 subject to VAT recalculation. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) — [2004] EWCA Civ 1483; appeal allowed, the damages assessment was set aside and substituted awards were made.
• Central London County Court — His Honour Judge Cowell awarded global damages of £12,900, including £6,000 general damages, with loss of earnings limited to six months and no future-loss award.