The claimant had injured her hip and alleged that she had been caused permanent disability by way of chronic pain. She appealed against a decision of a judge who awarded her damages of only £11,000 for personal injury.

Experts have been instructed to produce a joint report. Both experts were puzzled by the continuation of chronic pain suffered by the claimant where there was no definable orthopaedic cause. They were unable to establish a definite diagnosis. The defendant’s expert thought that the injury should have resolved within three to six months, whereas the claimant’s expert considered that it should have resolved within a year.

Psychiatric and psychological reports ruled out any psychiatric illness. So the court had to decide whether it was satisfied, on the balance of probabilities, that the pain experienced after a 12-month period had been caused by the accident.

The Judge found that the claimant was a truthful witness and was indeed suffering pain, although she was prone to some exaggeration. He found that, although the experts could not say that the pain was not related to the accident, the evidence had not shown that it was related to the accident so, on the balance of probabilities, he was unable to find a link. That is why he awarded a modest sum in damages.

In the Court of Appeal, the Claimant contended that the Judge had applied the wrong test in that the failure of all medical enquiries to throw up the cause of the pain meant that, on the balance of probabilities, the pain had resulted from the accident.

The Court of Appeal was not prepared to accept this, saying that it was clear from the Judge’s conclusions that he had meant that no physical link between the accident and the pain had been proved. It had been beyond the experts’ professional competence to assert positively that there was an ongoing causative link and in these circumstances the Judge was entitled to come to the conclusion he had.

Thorp -v- Sharp, 6 December 2007, Court of Appeal.