Bouchouk v Ministry of Defence

In assessing personal injury damages, causation may be established where the evidence, considered as a whole, shows on the balance of probabilities that an accident caused symptoms through its effect on a pre-existing condition. Tentative expert wording does not prevent that conclusion where the report, properly amplified, expresses an overall supportive opinion.

Loss of earnings must reflect the realistic counterfactual course of events, including independent events that would have ended employment. A failure to mitigate requires clear evidence from the defendant. General damages for pain, suffering and loss of amenity are assessed as a single award, with appropriate attention to comparable injuries and pre-existing conditions.

The claimant, an employee of the Ministry of Defence, injured his left shoulder while pulling an electricity cable from water in circumstances for which the defendant accepted liability. The issues concerned whether the accident accelerated pre-existing shoulder and cervical problems, the date at which the claimant would otherwise have retired, failure to mitigate by refusing cervical surgery, and the valuation of consequential losses and general damages.

The court assessed the medical evidence, the claimant’s unreliable evidence, the effect of a subsequent heart attack, and the available factual comparators before determining the recoverable losses.

1. Causation. The admitted shoulder injury caused the claimant to adopt an abnormal posture. That posture affected a pre-existing degenerative cervical condition and accelerated the emergence of neck symptoms. Although the expert used tentative expressions, his amplified opinion, read as a whole, established causation on the balance of probabilities.
2. Losses. Without the defendant’s negligence, the claimant could have continued working until November 2007. His heart attack in June 2007 would inevitably have ended his employment by that date in any event. Loss of earnings and pension loss were assessed accordingly.
3. Mitigation. The defendant bore the burden of proving that the claimant unreasonably failed to mitigate by declining surgery. The evidence did not establish sufficiently clearly the medical advice, timing, risks and practical circumstances. No deduction was made.
4. Other losses and general damages. Claims for painting, DIY and domestic assistance were largely rejected because the evidence was unreliable or unsupported, save for £2,340 for care. General damages for pain, suffering and loss of amenity were assessed together at £6,000, having regard to the injury, pre-existing symptoms and the cited comparators.
5. The claim succeeded in part. The court awarded £13,709.79 for loss of earnings, £10,295.84 for pension loss, £2,340 for care and £6,000 general damages. Interest and costs were left for agreement or further determination.

First-instance judgment. No appellate history is stated in the judgment.