Ali v Caton & Anor

An apparently successful cognitive or knowledge test does not, without more, establish malingering or disprove brain-injury-related impairment. It must be assessed with the claimant’s history, day-to-day functioning, factual evidence and expert evidence.

Capacity under the Mental Capacity Act 2005 is decision-specific. The statutory presumption is not displaced merely because a person makes an unwise decision. The court may assess capacity by the whole evidence, including clinical observations and practical functioning, rather than by neuropsychological evidence alone. Where the evidence supports continuing impairment, damages may include supported financial management, care and loss of earnings. The appeal and cross-appeal were dismissed.

The claimant was seriously injured in a road accident in 2006. Liability was agreed at 80 per cent in his favour, subject to contributory negligence. Stuart-Smith J assessed quantum after a 12-day trial, awarding damages and periodical payments. He found lasting cognitive impairment, no residual earning capacity, lack of capacity to manage property and financial affairs, and continuing care and case-management needs: [2013] EWHC 1730 (QB).

The Motor Insurers’ Bureau appealed, principally relying on the claimant’s apparent unaided success in the UK Citizenship Test. It challenged the findings on impairment, mental capacity, care, earning capacity and pain, suffering and loss of amenity. The claimant cross-appealed on the finding that he had passed the test and on the awards for care and PSLA. The central issue was the proper significance of the test result in the evidence as a whole.

The Court of Appeal unanimously dismissed the appeal and cross-appeal.

1. UK Citizenship Test. The trial judge was entitled to find that the claimant had attended and passed the test. The booking records, the support worker’s note, the identity checks and the testing procedures provided a sufficient evidential basis. None of the experts regarded the result as impossible. The appellate court would not substitute its own assessment for the judge’s assessment of that evidence.
2. Effect on impairment. The judge had confronted the inconsistency between the test result and the claimant’s repeated presentation in neuropsychological testing. He was entitled to consider the result alongside the evidence from Banstead, the claimant’s family, support workers and treating professionals. The result showed that some test scores overstated the severity of the deficit, but it did not compel a finding of malingering or deliberate feigning. The judge’s finding of significant, multi-factorial and accident-related cognitive and behavioural impairment remained open to him.
3. Mental capacity. Capacity under the Mental Capacity Act 2005 is capacity to do a particular thing. The relevant question was capacity to manage property and financial affairs. The statutory presumption and the requirement to take practicable steps to assist decision-making did not prevent a finding of incapacity on the whole evidence. The court, rather than any particular expert, had to weigh neuropsychological opinion with clinical observations and evidence of practical functioning. The approach in Masterman-Lister v Brutton & Co. [2003] 1 WLR 1511, Re M [2014] 3 WLR 409 and NHS Trust v P [2013] EWHC 50 (Fam) supported a decision-specific and non-paternalistic assessment.
4. Quantum. The judge struck a permissible balance in awarding continuing care and case-management support rather than only a contingency fund. His findings of no measurable residual earning capacity and PSLA of £147,500 were not speculative or shown to involve error. The awards and related findings were therefore upheld.

• Court of Appeal (Civil Division): In [2014] EWCA Civ 1313, the court dismissed the Motor Insurers’ Bureau’s appeal and the claimant’s cross-appeal.
• High Court, Queen’s Bench Division: Stuart-Smith J assessed quantum, awarded damages and periodical payments, and made findings concerning cognitive impairment, mental capacity, care needs and earning capacity in [2013] EWHC 1730 (QB).