Charnock & Ors v Rowan & Ors

An appellate court should not reverse for an alleged legal error in the treatment of evidence unless the error affected the findings or outcome. A trial judge may assess whether discrepancies undermine present testimony while treating medical reports as reliable evidence of what was reported to doctors. The Court of Appeal therefore dismissed the appeal without deciding the wider dispute about notice and formal proof of hearsay in agreed bundles. It observed that examining doctors should ordinarily address medical coherence and leave credibility to the court. Clear pleading remains important: a party may be barred from relying on evidence supporting an unpleaded contention.

Fourteen passengers claimed whiplash injuries after a car struck a stationary bus. Ten established liability for modest agreed damages. The insurers relied on collision dynamics and alleged that the claimants had collectively fabricated their injuries.

HHJ Gore QC rejected the defence and found that the inconsistencies in the claimants’ accounts did not justify disbelieving them. The insurers appealed, arguing that the judge had wrongly reduced the weight of evidence derived from medical reports because the alleged inconsistencies had not been notified in advance. The central issue was whether that approach had materially affected the factual findings.

The Court of Appeal unanimously dismissed the appeal. Sir Stephen Sedley gave the judgment, with Mr Justice Mann and Lord Justice Gross agreeing.

1. Effect of the alleged error. Even assuming that the insurers’ legal submissions about admissibility, notice and the use of hearsay were correct, the appeal could not succeed. The judge’s detailed findings showed that he had considered the inconsistencies relied on by the insurers. He treated the medical reports as reliable evidence of what the claimants had told Mr Shah, without treating those earlier accounts as truthful. He then addressed the real question: whether the discrepancies justified disbelieving the claimants’ evidence. No material devaluation of that evidence or contamination of the findings was shown.
2. Medical evidence and credibility. The reports were relevant to the assessment of credibility, but the court remained responsible for deciding whether the claimants were telling the truth. The judge’s treatment of the evidence therefore did all that the appellants required.
3. Procedural issue left open. It was unnecessary to adjudicate the competing arguments concerning the formal admissibility and notice requirements for hearsay contained in medical records. The discussion of Denton Hall Legal Services v Fifield [2006] EWCA Civ 169, the Civil Evidence Act 1995 and CPR provisions was to be read in that light.

Obiter observations

• An examining doctor should ordinarily confine the report to clinical matters and the medical coherence of the account. The doctor should not routinely act as a sleuth or decide which witness is truthful.
• Section 1 of the Civil Evidence Act 1995 was treated as making the relevant statement admissible as hearsay. Section 2 provides the notice framework, while section 2(2), CPR 33.3 and CPR 32 PD 27.2 appear to permit the agreed-bundle procedure under which documents are admissible as evidence of their contents unless objected to or otherwise ordered.
• Parties should plead their cases with sufficient clarity. A party that has failed to plead a contention adequately may be barred from adducing evidence, whether hearsay or otherwise, in support of it.

No remittal or further order was required.

• Court of Appeal (Civil Division) — [2012] EWCA Civ 2: dismissed the insurers’ appeal.
• Liverpool County Court — HHJ Gore QC heard the trial from 28 June to 1 July 2010 and found for the claimants on liability.