Butler & Anor v Thompson

A normal scan does not by itself exclude traumatic brain injury. A judge may infer injury from the claimant’s history and behaviour where they are consistent with it, subject to scientific and forensic limits. The appellate court should respect a trial judge’s rational choice between competing expert explanations and intervene only where the reasons are inadequate or the conclusion is indefensible. An erroneous scan interpretation will not break causation where the accident had already produced the relevant syndrome. For mitigation, the question is whether it was reasonable in all the circumstances to expect greater earnings, assessed by comparing earning capacity with actual earnings.

The respondent was injured as a front-seat passenger when the appellants’ van collided with the car in which she was travelling. Liability was admitted, and the claim proceeded in Southampton County Court on damages only. The respondent alleged continuing disabilities caused by organic brain damage. The appellants disputed the evidence of brain damage and relied on her earlier medical and emotional history.

The recorder accepted that the accident caused her continuing difficulties, rejected a total period of post-traumatic amnesia, found some post-traumatic and retrograde memory loss, held that an erroneous SPECT scan interpretation had not broken causation, and accepted the claim for neck pain. He treated her existing part-time earnings as sufficient mitigation and awarded damages. The appeal concerned the evidential basis and adequacy of those findings, causation, neck symptoms, and residual earning capacity.

Lord Justice Sedley gave the principal judgment. Lord Justice Clarke ultimately agreed with his reasons, and Lord Justice Rix agreed with the reasons of both. The decision was unanimous.

1. Brain damage and expert evidence. The absence of visible damage on a scan did not logically or scientifically exclude brain injury where the claimant’s history and behaviour were consistent with it. The scientific limit arose where the symptoms were such that any causative damage would have been clinically detectable. The forensic limit arose where a more probable, or at least less improbable, alternative cause was advanced. The recorder had made a rational and defensible choice between organic injury and an unexplored alternative cause. The claimant’s momentary loss of consciousness was an inference from the other findings, not an independent finding. The earlier criticisms of Dr Harvey in Stotardt v Selkent Bus Co [2003] EWHC 2135 (QB) and Ball v London Borough of Southwark [2003] EWHC 3499 (QB) did not prevent the recorder from preferring his evidence after assessing it alongside the evidence as a whole.
2. Adequacy of reasons. The recorder’s reasons, although briefly expressed, met the minimum standard identified in English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605. They stated what he had decided and, in substance, why. The real challenge was to the evidential soundness of the conclusion, not to the form of the reasons.
3. Causation. The erroneous interpretation of the SPECT scan did not break the chain of causation. The relevant syndrome and work difficulties had already developed, and the underlying accident-related brain injury remained the operative cause. The misinterpretation therefore afforded no defence.
4. Neck symptoms. The recorder was entitled to accept the claimant’s evidence and the supporting medical opinion despite an earlier remission and later worsening of the neck pain. There was no detectable flaw in that reasoning.
5. Mitigation and disposition. The proper question was whether, in all the circumstances, it was reasonable to expect the claimant to earn more than she did, or whether her earning capacity exceeded her earnings. The formulation that there was no obligation to work harder than was reasonable was too elliptical. Her residual earning capacity was assessed at £3,500 per year for the foreseeable future, and the award was to be recalculated accordingly. The appeal was allowed to that limited extent and dismissed in all other respects.

1. Court of Appeal (Civil Division): Allowed the appeal only to the extent that the claimant’s residual earning capacity was assessed at £3,500 per year and the award was to be recalculated; dismissed the appeal in all other respects.
2. Southampton County Court: On a damages-only claim, the recorder accepted accident-related brain injury and other pleaded losses, treated the claimant’s existing earnings as sufficient mitigation, and awarded damages in claim SO106381.