Masood v Kerr & Ors

An appellate court should not interfere with a trial judge’s assessment of witness reliability unless it was plainly wrong. Where medical experts disagree on causation, the trial judge may prefer one opinion if it is cogently reasoned, free of obvious flaws and supported by other evidence. The judge may assess the claimant’s factual account where the experts rely on it. An alternative claim that an accident exacerbated a pre-existing condition must be addressed, but consequential loss of earnings cannot rest on speculation unsupported by expert medical evidence.

The appellant claimed damages after a road traffic accident, alleging that it caused or exacerbated chronic fatigue syndrome (CFS/ME). The trial judge found that CFS already existed before the accident, awarded £2,000 for whiplash and £1,000 for exacerbation, and dismissed the substantial causation claim. The appellant challenged the judge’s assessment of his reliability, preference for the respondent’s expert evidence, use of counsel’s notes and treatment of the alternative exacerbation case. The central issues were whether the findings were open to the judge and whether a larger loss-of-earnings award was justified.

Lord Justice Longmore gave the leading judgment. Lord Justices Etherton and Ward agreed.

1. Appeal dismissed. The trial judge’s assessment of Mr Masood’s reliability was particularly within his province. The judge gave cogent reasons for it, and the mistaken insertion of “long-standing” before “backache” was a peripheral and understandable error which did not undermine the overall assessment.
2. The judge was entitled to prefer Dr Webley’s evidence on the timing of the onset of CFS. The evidence was cogently advanced, contained no obvious flaw and was supported by contemporaneous medical material and other non-expert evidence. The court was not concerned merely with choosing between experts: it was necessary to decide whether the appellant’s account of the difference between his pre- and post-accident fatigue was reliable.
3. It was legitimate for the judge to assess the appellant’s factual account where Dr Huskisson’s analysis depended on it. Referring to the expert’s reliance on information obtained from the appellant did not amount to giving improper weight to a layman’s evidence. There was also no irregularity in referring to counsel’s notes of the expert evidence, since no simultaneous transcript existed and the notes were not materially inaccurate.
4. The judge had addressed the alternative case that the accident exacerbated existing CFS. The £1,000 award for enhanced fatigue was therefore available on the evidence. A larger award for loss of earnings would have been speculative and was unsupported by expert medical evidence.

1. Court of Appeal (Civil Division) — Appeal dismissed: [2010] EWCA Civ 1347.
2. Central London Civil Justice Centre — His Honour Judge Knight QC dismissed the causation claim on 29 April 2009, awarding £2,000 for whiplash and £1,000 for exacerbation.