In Thompson & Anor v Middleton  EWCA Civ 231, the unsuccessful Defendant in a road traffic personal injury case appealed on the grounds that the judge at first instance dealt inappropriately with a new line of argument from the Defendant’s medical expert pertaining to causation suggested at a quantum only hearing, after causation had been determined in the Claimant’s favour.
The Court of Appeal (Rafferty LJ, Mann J, Dame Janet Smith) disagreed and held that the judge’s reasons were full, clearly expressed, factually accurate and more than adequately explained the judge's thinking.
The facts were relatively unremarkable. The Claimant’s car was found to have been shunted from behind by the Defendant’s car causing the Claimant to sustain a whiplash injury to his neck and back. The Defendant admitted liability but put causation and quantum in issue.
The Claimant admitted the resolution of his neck symptoms, but suggested that his back symptoms were ongoing and thus caused him a disadvantage on the labour market. Accordingly, it was agreed that the issues of causation quantification of special damages should be tried as preliminary issues.
At a hearing a judge made findings of fact that the Claimant was genuinely suffering from continuing pain due to facet joint damage caused by the accident and that the only psychological element in the case arose from depression and frustration about his condition.
At the second hearing, notwithstanding his knowledge of the judge's conclusions, a consultant psychologist instructed by the Defendant expressed the view that by the time of the accident, the Claimant was suffering from undifferentiated somatoform disorder. This is a psychosomatic disorder, which in the Claimant’s case it was suggested manifested itself by abnormal healthcare-seeking behaviour. This suggested diagnosis was based mainly on his interpretation of the Claimant’s medical records.
The judge considered but ultimately rejected this new line of evidence. He however reduced the award of damages for future lost earnings to account for the finding that the Claimant had probably exaggerated his injuries.
The Court of Appeal rejected the Defendant’s argument that the Judge’s reasoning was too thin. It held:
(1) The issue of causation had been determined. It was simply too late for the Defendant to advance the psychologist’s theory at the second hearing. There were no reasons for not calling the evidence at the first hearing when it could have been admissible, relevant and possibly persuasive. The judge would have been entitled to reject W's evidence for that reason alone.
(2) The judge's reasons were quite full, clearly expressed, and factually accurate, and more than adequate to explain the judge's thinking.
(3) The sum awarded seemed surprisingly large for an injury following so minor an accident. If the Defendant’s evidence had been presented at the first hearing, the judge might have accepted his evidence and the award of damages would have been very much lower.
Whilst of course, much depends on the quality and diligence of the expert him/herself, and whilst such unusual causation arguments are far from usual in an otherwise run-of-the-mill RTA this case should stand as a stark reminder for all legal professionals involved in any litigation to perhaps think outside of the box and explore all possible avenues and lines of argument with an instructed expert in good time.