Thorp v Sharp

In a personal injury claim, the claimant must prove on the balance of probabilities that the claimed consequences were caused by the accident. The absence of an identifiable physical or psychiatric cause does not automatically defeat causation. The court must assess the evidence as a whole and may draw a general inference where justified. However, where the evidence does not enable the trial judge to find the necessary causal link, a conclusion against the claimant is permissible. An appellate court should not interfere merely because another inference was open, provided the correct test was applied and the conclusion was tenable.

Thorp v Sharp concerned an appeal on the quantum of damages in a personal injury action arising from an admitted workplace accident. The claimant alleged that a hip injury had caused continuing chronic pain and disability. The trial judge accepted that she was suffering pain but found that, beyond approximately twelve months, its cause could not be attributed to the accident on the balance of probabilities. Damages of just over £11,000, including interest, were awarded in the Norwich County Court on 28 February 2007. The claimant appealed, arguing that the judge had applied the wrong causation test or, alternatively, that the matter should be remitted.

The Court of Appeal unanimously dismissed the appeal.

1. Correct causation test. The claimant had to establish, on the balance of probabilities, that the continuing pain and disability were consequences of the accident. The absence of an identifiable physical or psychiatric cause was relevant evidence, but it did not create an automatic rule that causation was impossible. If the trial judge had applied such a rule, he would have erred. Read in context, however, the judge was stating that, having considered the evidence as a whole, he could not find the necessary causal link.
2. Effect of the medical evidence. The orthopaedic experts had been unable, within their professional discipline, to identify an observable cause or demonstrate a continuing causal connection. Their evidence did not positively establish that the symptoms were unrelated to the accident. The ultimate issue remained for the judge, who was entitled to draw a general inference from the evidence if justified, but was not required to do so.
3. Application of the evidence. The judge was entitled to regard the accident as a low-velocity injury likely to have caused soft-tissue symptoms of limited duration. The evidence that the symptoms had at times resolved, together with the absence of an observable orthopaedic or psychiatric cause, the pre-existing history and the evidence of exaggeration, provided a tenable basis for finding that the continuing symptoms had not been proved to result from the accident.
4. Appellate restraint. The conclusion was open to the trial judge on the evidence and was not shown to be against its weight. The Court of Appeal therefore had no proper basis for intervention.

• Court of Appeal (Civil Division): Appeal dismissed. [2007] EWCA Civ 1433
• Norwich County Court: HHJ O’Brien QC awarded the claimant damages, including interest, of just over £11,000 on 28 February 2007. Liability was admitted, but the judge found that continuing pain beyond approximately twelve months had not been proved to have been caused by the accident.