Kevin Lillington v Ministry of Defence

On a factual appeal, the appellate court must respect the trial judge’s advantage in hearing the evidence. An inference from primary facts may be reviewed where there is a real prospect that it is wrong, but the court should not interfere with an evaluative conclusion unless it falls outside the generous ambit within which reasonable disagreement is possible. Where evidence is conflicting or incomplete, a finding remains open to the trial judge if reasonably supported by the evidence. The court may distinguish the proof required to establish liability from the assessment of financial loss flowing from an established breach.

The Ministry of Defence appealed from a decision of His Honour Judge Horton in the Portsmouth County Court. The judge found that the Ministry had negligently required Acting Corporal Lillington, despite medical restrictions arising from Compartment Syndrome, to carry a fully loaded Bergen and to run during an insertion march on a modified Junior Command Course in 2009.

The judge awarded general damages and further damages for loss of pay and pension, finding that, if properly protected, Mr Lillington would probably have passed the course and obtained permanent Corporal rank. The appeal challenged that factual conclusion, relying principally on the judge’s treatment of another candidate’s earlier failure and on an alleged misunderstanding of the nature of the 2008 course. The central issue was whether the judge’s inference and evaluation of the evidence could properly be disturbed.

1. Appeal dismissed. The Ministry of Defence did not challenge the findings of negligence or the general damages. Its challenge concerned the finding that, if properly protected in accordance with his medical certification, the respondent would have passed the 2009 Junior Command Course and become a Corporal from 31 March 2010.
2. On a challenge to a primary finding of fact, or an inference from primary facts, the appellate court must determine whether the judge was wrong while giving full weight to the trial judge’s advantage in hearing the oral evidence. A challenge to the evaluation of facts is treated analogously to a challenge to the exercise of discretion. The court should interfere only where the conclusion falls outside the generous ambit within which reasonable disagreement is possible: Assicurazione Generali SpA v Arab Insurance Group [2003] 1 WLR 577, adopting the approach in Todd v Adams & Chope [2002] 2 Lloyd’s Rep 293.
3. The judge had been entitled to infer that the respondent had been required to carry a Bergen on the 2008 insertion march. The evidence was conflicting and incomplete. The Ministry could have adduced evidence about the activities undertaken in 2008 but did not do so. The inference was therefore open to the judge, who was best placed to resolve the evidential conflict.
4. Even if that inference had been wrong, it would not have invalidated the conclusion that the respondent would probably have passed the 2009 course. The judge had relied on the respondent’s positive appraisals, the fact that medically restricted candidates could pass on a later attempt, the respondent’s certification as fit to undertake the course, the high overall pass rate, the respondent’s motivation, and the mandatory guidance requiring candidates not to begin training with an injury or illness likely to prevent successful completion.
5. The court noted, without deciding, that damages for loss of a chance might have been appropriate in assessing future financial loss. The parties had proceeded on the agreed basis that the judge should decide whether passing the course and promotion were more probable than not. That issue was not determined.

Lord Justice Treacy and Lord Justice Moore-Bick agreed with Lord Justice Vos. The appeal was dismissed.

• Court of Appeal (Civil Division) — appeal from the Portsmouth County Court. Appeal dismissed.
• Portsmouth County Court — His Honour Judge Horton found negligence and awarded general damages of £3,750, together with £62,559 inclusive of interest for loss of pay and pension.