Goodman v Faber Prest Steel [05.03.13]

Court of Appeal orders re-hearing where Judge accepted Claimant's account of symptoms following accident and ignored conflicting documentary evidence.

Implications

This decision will provide some reassurance to defendants and insurers faced with claimants whose accounts of their injuries do not accord with the documentary evidence available. Lord Justice Moore-Bick stated that memory often plays tricks and even a confident witness, who honestly believes in the accuracy of his recollection, may be mistaken. He made it clear that, where a claimant's evidence is preferred, the judge must explain why this is the case.

The case underlines the importance of obtaining and examining medical records and other documentary evidence which may support or undermine a claimant's version of events. All records must be carefully scrutinised and issues raised with the experts by Part 35 questions and during expert joint meetings. This should ensure that a trial judge is required to make findings on the totality of the evidence, oral and documentary.

In this case, the failure of the trial judge to address such a fundamental point arising from the documentary evidence and expert joint statement is surprising. It is reassuring for insurers that the Court of Appeal was not prepared to hide behind the trial judge's discretion in assessing witness reliability and ordered a retrial.

Background

The Claimant sustained injuries in a road traffic accident on 26 February 2004. Liability was admitted, subject to a discount of one third for contributory negligence.

The Claimant alleged that, as a result of the accident, he suffered from pain in his knees, lower back and neck, particularly when driving. It was the Defendant's case that, apart from the immediate shock and discomfort caused by the accident, Mr Goodman had suffered no, or no significant, injury as a result. The Claimant's medical expert was Mr Richard Coombs. The Defendant's expert was Mr Robert Hay.

At first instance, Her Honour Judge Corbett accepted the Claimant's case and awarded him damages of £69,478.

Decision

Moore-Bick LJ set aside the Judge's order and remitted the case for re-hearing before a different Judge:

  • Although Mr Coombs and Mr Hay differed in their opinions, there was one matter on which they were agreed. If the Claimant had sustained any significant injury to his knees, back or neck he would almost certainly have suffered painful symptoms in the days immediately following the accident.
  • The medical records showed that the Claimant was clearly not averse to consulting his GP. However, it was not until the beginning of May 2004 that he made any relevant complaints. In addition, in an email dated 8 May 2006 sent to his line manager, the Claimant stated that he had not noticed any pain on driving for over a month after the accident.
  • The Judge was swayed by Mr. Goodman’s performance in the witness box into disregarding the important documentary evidence bearing on what had become the central question in the case. It may have been open to her to prefer what he had said in the witness box, but if she was minded to do so it was incumbent on her to deal with the documentary evidence and explain why Mr. Goodman's oral evidence was to be preferred.