Edmonds v Lloyds TSB Group Plc

In assessing whether a claimant acted reasonably in refusing medical treatment said to mitigate personal-injury loss, the court must evaluate the claimant’s reasons cumulatively. Relevant factors may include understandable anxiety about the treatment, the absence of any guarantee of success, advice from a treating general practitioner, and the treating specialist’s own view that refusal was reasonable. The defendant bears the burden of proving failure to mitigate. Although the issue is one of fact, an appellate court may intervene where the judge has materially mis evaluated unchallenged evidence or attached disproportionate weight to particular factors.

The claimant, an employee injured in a workplace fall, recovered damages after liability had been compromised at 75 per cent. The defendant alleged that she had failed to mitigate her loss by refusing three hydrocortisone injections to the sacro-coccygeal area, recommended by a consultant orthopaedic surgeon and intended to improve her condition sufficiently for a return to work.

His Honour Judge Simpson held that the refusal was unreasonable and reduced the damages accordingly. The claimant appealed on mitigation and on aspects of the damages assessment. The central questions were whether the refusal was reasonable on the evidence and whether the remaining damages could be assessed by the Court of Appeal.

1. Appeal allowed. The finding that the claimant had failed to mitigate her damages was set aside.
2. The basic rules were undisputed: a claimant must take reasonable steps to mitigate loss; the defendant bears the burden of proving failure; and reasonableness is ordinarily a question of fact. In a personal-injury case, the assessment is highly fact specific.
3. Lord Justice Gage held that the judge had failed properly to evaluate the evidence cumulatively. He had overvalued the prospects of treatment, treating a 50 per cent chance of significant improvement as a high prospect and overlooking the equal possibility of only temporary improvement. He also gave insufficient weight to the claimant’s understandable anxiety about injections, the advice of her long-standing general practitioner, the absence of any guarantee of success, and Mr Osborne’s opinion that refusal was reasonable. The fact that the general practitioner was not called did not justify dismissing the claimant’s unchallenged evidence of the advice she received.
4. The judge also attached excessive weight to the claimant’s failure to consult her treating surgeon again. That surgeon had not previously recommended injections, and the claimant had already sought advice from her general practitioner. Taken cumulatively, and bearing in mind the defendant’s burden of proof, the evidence established that her refusal was reasonable. Sir Martin Nourse agreed, confirming that the judge had failed to consider the whole of the evidence in the context of the issue. Lord Justice Potter agreed with both judgments.
5. The remaining damages issues could not properly be resolved because the judge had made no adequate findings on alternative employment, loss of congenial employment, care, or the adjustment of general damages. Those matters were remitted to the district judge for reassessment of general and special damages, including future loss of earnings, future care and loss of congenial employment.
6. Lord Justice Gage expressed reservations, without deciding the issue, whether any causation assessment concerning the treatment should proceed on the balance of probabilities or by reference to loss of chance. The point did not arise for determination.

• Court of Appeal (Civil Division): Appeal from the Mayor's and City of London County Court allowed. The damages issues were remitted to the district judge for reassessment.
• Mayor's and City of London County Court: His Honour Judge Simpson, on 15 March 2004, awarded total damages of £23,384, subject to the agreed 25 per cent contributory negligence, and found that the claimant had failed to mitigate her loss by refusing the proposed injections.