Newman v Laver & Anor

In an appeal on quantum, a trial judge may resolve disputed medical evidence by applying the burden of proof where, after conscientiously evaluating the evidence, the court remains unable to reach a definite conclusion. That approach is exceptional but legitimate in a case involving complex and conflicting medical opinions. An appellate court should not interfere with findings of fact or expert preference unless the judge was plainly wrong or failed to give adequate reasons.

Where a claimant relies on a rare, subjective condition without objective clinical confirmation, consistency in the account may be an important diagnostic and evidential consideration. The court must assess that evidence in the round, together with credibility, expert evidence and other relevant indicia. Psychological continuation of accident-related symptoms need not be permanent where rehabilitation and recovery remain reasonably supported by the evidence.

The claimant sustained injuries in a road traffic accident for which liability was admitted. The trial before HHJ Bursell QC concerned quantum, including the alleged condition of bilateral monocular diplopia, continuing post-concussional symptoms, loss of earnings and care costs.

The judge rejected the claim that the claimant had proved bilateral monocular diplopia, accepted that he had suffered a post-concussional syndrome with psychological continuation, and awarded damages. The claimant appealed, alleging inadequate reasoning, unfair reliance on an unpleaded fabrication case, impermissible use of the burden of proof, and insufficient evidence for the prognosis and assessment of loss.

The central issues were whether the findings on the alleged visual condition and continuing symptoms were open to the judge, and whether the damages assessment could stand.

1. Appeal dismissed. The judge had carefully evaluated the factual and expert evidence and gave adequate reasons. His findings were not shown to be plainly wrong.
2. The alleged bilateral monocular diplopia had been advanced essentially as an organic condition. No identifiable ocular, vestibular or neurological cause had been established. The trial judge was entitled to attach substantial weight to inconsistencies in the claimant’s descriptions, while considering the evidence in the round. Consistency was an important diagnostic consideration where there was no objective evidence of an organic basis, but it was not a rule that displaced the judge’s wider evaluative role.
3. The judge was entitled to prefer the sceptical evidence of Dr Kennedy to Dr Plant’s opinion. He did not make an unexpressed finding that the claimant was a wholesale fabricator. The defence case, expert evidence, cross-examination and video evidence had sufficiently put credibility and the alleged sequelae in issue: Kearsley v Klarfeld [2005] EWCA Civ 1510.
4. The judge was entitled to conclude that the claimant had failed to prove bilateral monocular diplopia on the balance of probabilities. The case fell within the exceptional category identified in Pickford v Imperial Chemical Industries [1998] 1 WLR 1189, where complex and disputed medical evidence left the court unable to reach a definite conclusion. Stephens v Cannon [2005] EWCA Civ 222 did not require a different result because it concerned a fundamentally different valuation problem and a failure to make findings on the evidence. The judge had grappled conscientiously with the issues and given adequate reasons, consistently with the contrast drawn from English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605.
5. As to post-concussional syndrome, the judge was entitled to find that the physical syndrome had ended by about August 2000, while psychological dependency and a sick role continued for a further two to three years and could be addressed through rehabilitation. The evidence did not require a finding of permanent disability.
6. The judge’s approach to loss of writing and lecturing income was also upheld. Existing writing projects could be pursued after rehabilitation, and further publishing income was too speculative. A loss-of-chance approach was unavailable for lecturing because no sufficiently established opportunity had been shown. The award therefore stood.

• Court of Appeal (Civil Division): Newman v Laver & Anor [2006] EWCA Civ 1135, 31 July 2006. Appeal from the quantum judgment of HHJ Bursell QC sitting at Bristol District Registry. The appeal was dismissed.