Walkden v Drayton Manor Park – Emma Zeb looks at the recent High Court appeal

Articles
27 Jul 2021

Walkden v Drayton Manor Park Ltd [2021] EWHC 2056 (QB)
Appeal against findings of FD fail – raising numerous heads of appeal did not make it better!

The Claimant’s case was that he suffered severe psychiatric and back injuries on a cable car at the Defendant’s amusement park in 2014.  Liability for the accident was admitted.  Quantum claimed at £1.5million was in issue.

After a trial on quantum only, the Claimant was awarded £17,600 in damages and was found to have exaggerated his symptoms.  The Defendant succeeded in persuading the trial judge that the Claimant had been fundamentally dishonest in respect of his claim pursuant to s. 57(2) of the Criminal Justice and Courts Act 2015 and ordered the Claimant to repay his interim payment as well as hefty costs on an indemnity basis.

Seven main grounds of appeal were launched.  All failed.  All 7 do not merit mention below as part of the reasoning for the appeal failing was the fact that some of the grounds of appeal added absolutely nothing.  Just a few points from the judgement…?

  1. Appealing findings of fact: An appellate court must not interfere with a trial judge’s findings of fact, unless it was compelled to do so. That applied, not only to findings of primary fact, but also to the evaluation of those facts, and the inferences to be drawn from them. An appellate court would interfere with findings of fact made by a trial judge only if it was satisfied that his decision could not reasonably be explained or justified (see [5]-[7] of the judgment).  In this case the Judge had fully summarised and analysed the evidence of arguably extensive, consistent and corroborative evidence of the Claimant’s ongoing limitations from other witnesses and had indicated that there was no reason to doubt the bona fides of these witnesses.  They had given ‘genuine evidence that from their perception [the Claimant] has not undertaken cycling, bee-keeping and the like. However, their perceptions are based upon how [the Claimant] has presented to them. It is his presentation that is the issue‘ (lines 1689-1692).   The Claimant’s presentation was what lacked credibility.
  2. Chronic pain: The judge had not erred in finding that the Claimant was not suffering from a chronic pain syndrome.  On appeal, the Claimant’s counsel argued that the judge’s finding that the Claimant had continuing mild pain was inconsistent with the finding that the Claimant did not have chronic pain syndrome.  This argument failed.   It was based on a mis-reading and a mis-understanding of the judge’s findings of fact and conclusions in relation to the main issues in the case, namely to whether the appellant had any ongoing pain and, if so, how bad it was, and whether that pain was caused by the accident. The judge had a wealth of evidence before him on those issues from lay witnesses, medical experts and through contemporaneous documents.  The judge had devoted most of his judgment to summarising, and analysing all that evidence which had been placed before him in relation to those issues. He had done so succinctly and with considerable care and, as a result, he had found that the appellant was not a credible witness, and had exaggerated his injuries. It was in that context that the judge had rejected the appellant’s case that he was suffering from a chronic pain syndrome.
  3. The experts: On behalf of the Claimant it was argued that the judge had wrongly concluded that Professor A (a psychiatrist and one of the appellant’s expert witnesses) had strayed outside her area of expertise and that, in doing so (which was not accepted), she had undermined her expertise generally.  This was also rejected.  The trial judge had been entitled to prefer the evidence of Dr B (and thereby reject the evidence of Professor A) and that was a further finding that was unassailable. The judge had carefully considered the evidence of the two medical experts, together with all the other evidence before him in reaching his conclusions.
  4. A dressed up expert point: Whether the judge had wrongly approached the quantification of the claim and the evidence from the forensic accountants. This ground appeared in reality to be a further complaint in respect of the judge’s findings of fact.  In that way, it was not a free-standing ground of appeal, but depended on the success of the earlier grounds. The judge had rejected the appellant’s case that, as result of the accident, the limitations and restrictions imposed on him were severe and this ground of appeal failed for the same reasons.
  5. The kitchen sink: As to whether the judge had wrongly found the appellant to have been fundamentally dishonest, there was nothing in the present ground of appeal.  There was ample evidence before the judge to conclude that the appellant had been ‘fundamentally dishonest in relation to the primary claim or related claim‘ and the claim should be dismissed under s 57. The judge had given clear reasons in his ex tempore judgment on 7 July 2020. That, again, had not been a conclusion which no reasonable judge could have reached on the evidence.

 

Emma Zeb
July 2021

Author

Emma Zeb

Emma Zeb

Call: 1998

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