Thompson & Anor v Middleton

A surprisingly large award following an apparently minor accident may justify permission to re-examine a case, but it does not by itself warrant overturning factual findings. An appellate court should not retry the evidence de novo by selecting passages from medical records. Where the trial judge has considered the evidence as a whole, resolved conflicts in witness and expert evidence, and reached conclusions open to him, the court should not interfere merely because another view is possible. A later damages hearing cannot be used to reopen causation already determined at a preliminary trial and not appealed. Fresh evidence on that issue requires permission under the requirements of Ladd v Marshall [1953] 1 WLR 1489.

The appellants appealed from an order of HH Judge Reddihough in the Reading County Court awarding the claimant £461,007 for injuries sustained in a road traffic accident. Liability had been admitted. At an earlier preliminary hearing, the judge had found that the accident caused facet-joint damage and continuing back symptoms. Those findings were not appealed.

At the later hearing on general damages and future loss, the appellants relied on psychiatric evidence diagnosing an underlying somatoform disorder and attributing the claimant’s continuing disability principally to that condition. The judge rejected that evidence, preferred the claimant’s pain and psychiatric experts, and assessed damages. The central issues were whether the later evidence impermissibly reopened causation and whether the judge’s factual and evidential conclusions were irrational or inadequately reasoned.

1. Appeal dismissed. The apparently disproportionate size of the award justified permission for re-examination, but did not itself undermine the judge’s factual findings.
2. Causation had been determined at the earlier preliminary hearing and the findings had not been appealed. The appellants could not obtain a second determination of causation through late psychiatric evidence at the damages hearing. Fresh evidence on an issue already determined could be admitted on or following an appeal only where permission was given under the requirements of Ladd v Marshall [1953] 1 WLR 1489. The judge would have been entitled to reject the late evidence on that basis alone. Evidence of developments since the earlier hearing could be considered only so far as relevant to prognosis and future loss, with care taken not to undermine the earlier findings.
3. The judge was entitled to take account of the experts’ continuing clinical practice, clinical experience and methods of assessment. Those matters could carry weight, although they could not alone justify preferring one expert. It was also appropriate to be slow to reject the pain-management expert appointed by the court.
4. The appeal court’s challenge amounted in substance to an attempt to retry the case by reference to selected medical records. The trial judge had addressed the competing evidence, assessed credibility and expert reliability, and reached conclusions open to him. His conclusions were not irrational or perverse, and he was not required to repeat every evidential detail when stating them.
5. The order awarding £461,007 therefore stood.

1. Court of Appeal (Civil Division): Appeal dismissed: [2012] EWCA Civ 231.
2. Reading County Court: HH Judge Reddihough awarded the claimant £461,007 on 20 December 2010, following an earlier preliminary determination that the accident caused the continuing back symptoms.