Ali v Caton [2014] EWCA Civ 1313


The Claimant claimed for damages following a road traffic accident in which he was seriously injured. The medical evidence concluded the Claimant has a significant cognitive deficit, yet he still managed to pass the UK Citizenship test. The Defendant argued this the Claimant had therefore exaggerated his injuries or was a malingerer. The Court found that despite the medical evidence  the Claimant had passed the UK Citizenship test without help, by learning the answers to the questions. It was found that the Claimant still lacked capacity for the purposes of the Mental Capacity Act 2005. As a consequence of this, the Claimant was found to need on going care and support for the rest of his life and had no residual earning capacity.

The Appeal

The Defendant appealed on the following grounds

  1. The Judge had failed to consider the implications of the Claimant passing the Test and had placed weight on medical evidence that was unreliable as a result.
  2. The Judge had failed to properly apply the provisions of the Mental Capacity Act 2005, particularly sections 1 – 3. It was submitted that the Claimant had capacity to manage his own affairs.
  3. The Claimant was thought capable of some profitable employment and therefore had a residual earning capacity.


The Court of Appeal dismissed the Appeal and found the following:

  1. The Claimant had passed the Test unaided. The medical evidence did not suggest it was impossible for the Claimant to pass the test, just unlikely. Moreover the test had to be considered in the wider context of all the evidence as a whole, which indicated the Claimant did suffer from a cognitive defect.
  2. The question of whether a person has capacity is fact specific and depended on the answer to the questions "capacity to do what?" The Court was concerned with the Claimant’s capacity to manage his property and financial affairs in this instance. The Judge was entitled to consider that the Claimant would struggle to handle large sums of money and to consider the evidence of experts from several disciplines, rather than solely relying on evidence from neuropsychologists.
  3. There was no evidence to justify a "speculative calculation" of potential future earnings which had no evidential basis.

Key points for defendants

  • The question of capacity was confirmed as being fact specific and is to be judged in relation to the specific decision or activity in question and not globally
  • In cases where mental incapacity is considered, evidence that is not consistent with the general view of the Claimant’s cognitive ability will be considered in the wider context of the case and is not magic wand with which to show the Claimant has capacity
  • The burden on proof is on the Defendant to show that the Claimant has residual earning capacity. Defendants will need to evidence actual employment opportunities to have any success of arguing a residual earning capacity