Watt v Tucker

In a personal injury claim, whether physical injury caused a claimant to alter working practices and suffer loss of earnings is ultimately a question of fact for the court. Expert opinion is important, but it does not bind the court where it rests on incomplete or untested assumptions, or where other factual evidence bears on causation. A party that has resisted the expert’s attendance and questioning cannot fairly insist that the court is bound by the expert’s reports alone. The court may assess the claimant’s credibility and the practical effect of symptoms on work, having regard to all the evidence. The approach accords with [2003] EWCA Civ 1223.

The claimant, a qualified optometrist, suffered whiplash injuries when her stationary car was struck from behind. Liability had been determined in her favour. On assessment, His Honour Judge Darlow awarded £372,909, principally for past and future loss of earnings.

The defendant appealed on the limited issue whether the evidence, particularly the joint orthopaedic expert’s reports and late letters, compelled a finding that the claimant remained fit for her pre-accident work and hours. The central question was whether her change from conventional to laser optometry and reduction to three working days per week were caused by the accident or represented a choice.

Appeal dismissed. Waller LJ gave the judgment, with Tuckey LJ and Neuberger LJ agreeing.

1. Whether the accident caused the claimant to change her working practices was ultimately a question of fact for the court. The issue had to be determined from all the evidence, including both factual evidence and expert opinion.
2. The court applied the approach stated by Clarke LJ in Coopers Payen Limited v Southampton Container Terminal Ltd [2003] EWCA Civ 1223. Expert opinion may be only part of the evidence, and assumptions underlying it may be shown to be incorrect when the trial judge hears the evidence as a whole. The court must then apply the burden of proof and find the facts on all the evidence.
3. The late letters from the orthopaedic expert were unsatisfactory. They referred to the neck rather than the upper thoracic symptoms, did not answer the claimant’s questions, did not address her important observations about the videos, and represented a possible shift from the earlier reports. The judge was entitled to give them little weight, particularly because the expert was unavailable for examination.
4. It was unfair for the defendant, having successfully resisted an adjournment and the expert’s attendance on the basis that the claimant’s evidence would be central, to contend that the court was bound by the expert’s reports alone. The trial judge was entitled to assess the claimant’s evidence, found her honest and reliable, and was entitled to conclude that the accident had forced the change in her work and hours.
5. The calculation of damages was not challenged. The appeal was therefore dismissed.

1. Court of Appeal (Civil Division) — The defendant’s appeal against the assessment judgment was dismissed: [2005] EWCA Civ 1420.
2. High Court of Justice, Queen’s Bench Division — His Honour Judge Darlow assessed damages on 30 November 2004 at £372,909, including substantial damages for past and future loss of earnings.