Niraja Padmalata Lal v Craig Reeder

An appellate court reviewing findings of fact, credibility or evidential evaluation must apply a stringent threshold. Intervention requires an identifiable error, a conclusion unsupported by the evidence, or a decision that no reasonable judge could have reached.

A claimant seeking loss of earnings must prove, on the evidence, what work would have been undertaken and what would have been earned on the counterfactual basis. An inaccurate schedule, unreliable evidence and an unproved work pattern may justify refusing the award.

The claimant appealed from a County Court judgment awarding damages for injuries sustained in a road traffic accident. The first-instance judge awarded damages for general injuries and eight months’ hospital employment loss, but refused an award for alleged agency nursing earnings and travel anxiety.

Permission was granted on the agency earnings issue. Permission on other grounds was considered at the hearing, but the claimant ultimately pursued only the agency earnings and travel anxiety issues. The central questions were whether the judge’s findings and refusals of those heads of loss were plainly wrong or irrational.

1. Appeal dismissed. The court dismissed the permitted appeal concerning agency earnings and refused permission concerning travel anxiety.
2. Under Civil Procedure Rules 1998, r.52.21, an appeal is ordinarily a review of the lower court’s decision. The appellate court may interfere where the decision was wrong or unjust because of procedural or other irregularity, but it does not conduct the trial afresh.
3. Findings of fact, credibility assessments and evaluations of expert or lay evidence attract appellate restraint. Following Henderson v Foxworth Investments Ltd, Deutsche Bank AG v Sebastian Holdings and Volpi v Volpi, intervention requires an identifiable error, a finding with no evidential basis, a fundamental misunderstanding, or a conclusion outside the range of reasonable disagreement.
4. The judge was entitled to refuse the agency earnings claim. The claimant bore the burden of proving what agency work she would have undertaken between September 2012 and May 2013 and what it would have produced. Evidence of a limited and irregular prior work pattern did not establish that counterfactual. The signed schedule was materially inaccurate, and the judge was entitled to rely on his adverse assessment of the claimant’s reliability.
5. The judge was also entitled to reject travel anxiety. He preferred the contemporaneous GP expert report, which recorded no anxiety or psychological symptoms, over later self-reports. The hire-car evidence and the claimed mileage were further matters capable of undermining the claimant’s account. The reasons were neither irrational nor wrong.
6. No assessment of damages was required. The court invited written submissions on the respondent’s costs.

• High Court (King’s Bench Division) — Appeal from the judgment of HHJ Richard Williams delivered on 6 November 2019 in the County Court at Birmingham. The appeal was dismissed on the permitted agency earnings ground, and permission was refused on the travel anxiety ground.
• High Court — HHJ Kelly dismissed the claimant’s application to rely on fresh evidence on 7 July 2021.
• Court of Appeal — Stuart-Smith LJ refused permission to appeal against that fresh-evidence decision on 16 January 2023.