Hardisty v Aubrey

Where medical evidence treats a substantial cessation of symptoms followed by recurrence as breaking causation, the trial judge’s factual findings must remain logically consistent with the claimant’s credibility and documentary evidence. A finding of cessation cannot rest on the absence of treatment while leaving accepted evidence of virtually continuous symptoms unexplained.

A party must know the case made against them and have an opportunity to answer it. Raising a causation issue only after the claimant has completed evidence may compromise the fairness of the trial. On remission, the rehearing may be limited where the conduct of the trial and appellate submissions make it unjust to reopen an issue. The matter was therefore remitted to a different judge, with causation treated as determined for the claimant.

The claimant sustained an admitted whiplash injury in a road traffic accident. The dispute concerned whether her continuing neck pain and headaches remained attributable to the accident or resulted from other causes, including pre-existing cervical degeneration. The Recorder concluded that her symptoms had substantially ceased between November 2002 and August 2003, inferred this principally from the absence of further treatment, and held that later symptoms were not caused by the accident.

The claimant appealed, arguing that the finding was inconsistent with the Recorder’s assessment of her as an honest and reliable witness and with her contemporaneous evidence. She also argued that the cessation issue had been raised too late and had not been put to her. The central questions were whether the causation decision could stand and, if not, what issues should be reheard.

1. Appeal allowed. Lady Justice Smith held that the Recorder’s decision on causation was logically flawed. He had treated the claimant as honest and straightforward, yet found a substantial cessation of symptoms based principally on her failure to obtain treatment. That conclusion required rejection of her repeated evidence that her symptoms had remained substantially continuous, including her September 2003 letter stating that headaches had occurred regularly for two years. Describing the letter as self-serving did not resolve the inconsistency. The decision on causation could not stand.
2. The trial was also unfair. The cessation issue emerged only after the claimant had completed her evidence. It was not put to her that she would have sought further treatment if significant symptoms had continued, or that her letter had been written to advance her damages claim. The claimant therefore lacked a proper opportunity to answer the case relied upon. This breached the cardinal principle of adversarial litigation that a party must know the case made against them and have the opportunity to deal with it.
3. The case was remitted to a different judge. Lady Justice Smith and Lord Justice Pill held that the rehearing should be limited to acceleration and re-quantification, with causation treated as determined in the claimant’s favour. They considered the respondent’s conduct at trial and its appellate skeleton argument, which sought assessment of damages on the basis of two to three years’ acceleration if the appeal succeeded, sufficient to make a complete rehearing unjust. Lord Justice Neuberger concurred in the result and gave additional reasoning that abandonment should not lightly be inferred, but may arise by implication where unfairness could not otherwise be remedied.
4. The formal order was appeal allowed with costs, remission to Cardiff County Court for rehearing limited to acceleration and re-quantification, and no listing before the original Recorder.

1. Court of Appeal (Civil Division): Appeal from the decision and order of Mr Recorder David Phillips QC. Appeal allowed with costs. The action was remitted to Cardiff County Court for rehearing before a different judge, limited to acceleration and re-quantification.
2. Cardiff County Court: The Recorder awarded damages after finding that the accident’s effects had substantially ended by November 2002 and that later symptoms had another cause.