Personal Injury - Medical Treatment Damages

Edmonds V Lloyds Tsb Bank Plc (2004)
CA (Civ Div) (Potter LJ, Gage LJ, Sir Martin Nourse) 22/10/2004

Mitigation : Measure Of Damages : Medical Treatment : Mitigation Of Losses : Burden Of Evidence : Judicial Evaluation Of Evidence

The trial judge, in assessing whether the appellant had mitigated her personal injury damages, had failed to consider the whole of the evidence before him and had not given proper weight to the appellant's reasons for not having a particular medical treatment.

The appellant (E) appealed the decision of a judge in an assessment of damages for personal injury that her decision not to undergo a particular medical treatment was unreasonable and that her damages should be limited accordingly. E was an employee of the respondent (L) when she was injured by tripping over some boxes at her workplace. E had suffered an injury to her coccyx and had not worked since the accident. Liability for the accident had been agreed at a ratio of 75 per cent to 25 per cent in E's favour.

At the trial for assessment of damages L had contended that E had failed to mitigate her losses by unreasonably refusing to undergo medical treatment, consisting of three hydrocortisone injections under general anaesthetic, that would have enabled her to recover and return to work. E had given evidence that she had not had the injections because: (1) she was anxious about the procedure;

(2) her GP had advised her that the injections were unlikely to be successful;

(3) her medical expert had not guaranteed that the injections would be successful; (4 ) E's medical expert was of the opinion that her refusal of the injections was reasonable. The judge had found that it was unreasonable for E not to have undergone the injections and that the claims for damages should be limited accordingly. E submitted, inter alia, that the judge had failed to evaluate the evidence properly and had looked at the factors for refusing treatment individually rather than cumulatively.

HELD: It was a basic principle of mitigation of damages that a claimant had a duty to take reasonable steps to mitigate his losses. The burden of proving that a claimant had failed to mitigate his losses lay on the defendant. The question of whether a claimant had failed to mitigate his losses was a question of fact and the Court of Appeal would be slow to reverse findings of fact.

However in the instant case, where the court had all the evidence before it that the trial judge had had and he had not made any adverse findings as to E's credibility, it was appropriate to intervene as the contention was that the judge had erred in his treatment of the evidence before him. The judge had failed to properly consider the whole of the evidence before him and had not given proper weight to the cumulative effect of E's reasons for not having the medical treatment. The judge's decision would be set aside and the matter remitted to the county court for determination of general and special damages.

Appeal allowed.