Defendant medical evidence finds favour in the whiplash case

Masood v Kerr and others (Court of Appeal 1 December 2010)

Mr Masood was involved in a road traffic accident in which he suffered a whiplash injury. He also alleged that, as a result of the accident, he had developed chronic fatigue syndrome (CFS) or, in the alternative, the accident exacerbated or brought forward the onset.

The total claimed was in the region of 295,000. The trial judge decided that Mr Masoor already had CFS at the time of the accident, although the condition may have been exacerbated by it. He awarded 2,000 for the whiplash plus 1,000 for the exacerbation.

The trial judge preferred the defendants medical evidence which was based on the pre-accident medical notes that indicated Mr Masoord was suffering from symptoms of CFS prior to the accident, even though a formal diagnosis had not been made.

The trail judge did not accept the opinion of Mr Masoods expert, which relied on Mr Masoods evidence that the fatigue he suffered prior to the accident was different to that which he suffered afterwards. The trail judge found Mr Masoods evidence to be unreliable. Mr Masood appealed and his appeal was dismissed.

Unless it was plainly wrong, which it was not, the Appeal Court would not interfere with the trial judges unfavourable view of Mr Masoods evidence. The trial judge was entitled to prefer the evidence of the defendants medical expert. It was not an experts job to assess whether Mr Masood was correct in what he said; that was a task for the judge.

This case reinforces the fact that it is for the trail judge alone to assess the reliability of the evidence given by the witnesses. Expert evidence heavily reliant upon witness evidence in reaching its conclusion needs to be treated with caution. The Court of Appeal will not readily interfere with a trial judges finding in relation to the evidence.