THE JUDGE SHOULD NOT HAVE OVERRIDDEN THE EVIDENCE OF THE (UNCHALLENGED) EXPERT WITNESS: CLAIMANT WAS ENTITLED TO DAMAGES FOR PSYCHIATRIC INJURY

In Sarah Jane Young v John Anthony Downey [2025] EWCA Civ 177 the Court of Appeal sent out another reminder that there are difficulties in trial judges attempting to override the views of expert witnesses.

“… in the circumstances of this case, the judge should not have allowed his own opinions, perhaps born of his personal experiences, to override Dr Cooling’s clearly reasoned expert evidence. The judge ought to have accepted Dr Cooling’s evidence and held that Ms Young had associated what she witnessed with danger to her father, and that her psychiatric injuries were caused by the events that she witnessed.”

THE CASE

The claimant’s father was killed in the bombing that took place in Hyde Park on 20th July 1982.  The claimant was then 4 1/2 years old. She saw her father, a Lance Corporal, leave the barracks, heard the explosion and saw other soldiers return to the barracks covered with blood and embedded with nails.  She brought an action for the psychological injuries she had suffered. That action was dismissed at trial because the trial judge held that, at 4 1/2, she would not have appreciated that her father may have been involved in the explosion. In coming to that finding the trial judge rejected the evidence of the expert psychiatrist that the claimant had feared that her father (her primary carer) had been involved in the accident.

THE CLAIMANT’S SUCCESSFUL APPEAL TO THE COURT OF APPEAL

The claimant’s successfully appealed to the Court of Appeal.  It was held that the the trial judge should not have rejected the psychiatric evidence and replaced it with their own views.

4. Mr Downey has deliberately declined to participate in these proceedings as explained by the judge at [5]-[6], and by Yip J in her judgment on liability at [9]-[17] and [41]-[42] ([2019] EWHC 3508 (QB)). Ms Studd submitted that Mr Downey’s non-appearance to challenge the claimant’s evidence meant that the judge should not have done so himself, and should certainly not have rejected a critical part of Dr Cooling’s expert analysis (relying on Lord Hodge’s judgment in Griffiths v. Tui (UK) Ltd [2023] UKSC 48, [2023] 3 WLR 1204 (Tui) at [2] and [70]-[78]).

5. I have decided that this appeal should be allowed, primarily because the judge ought not, in the circumstances of this case, to have rejected Dr Cooling’s evidence on the basis of his own views. I shall explain that decision under the following headings: (i) essential factual background, (ii) the judge’s decision, (iii) identifying persons who are sufficiently proximate to recover damages for psychiatric injury resulting from witnessing traumatic incidents or their aftermath, (iv) whether the judge was right to hold that Ms Young needed to show that she appreciated that her father was involved in the explosion, (v) in any event, was the judge right to reject Dr Cooling’s evidence, and (vi) conclusions.

THE COURT OF APPEAL JUDGMENT ON THE EXPERT EVIDENCE

27.At [81] of his first report, Dr Cooling clearly opines that Ms Young’s post-traumatic stress disorder was caused by witnessing the circumstances and direct aftermath of the bombing.

28. In his judgment recording Dr Cooling’s evidence, the judge notes that he (Dr Cooling) would have “expected a child of 4½ to make an association between what she was watching and her father”. Dr Cooling’s evidence was that Ms Young “would have appreciated she was seeing something unusual, frightening and challenging”. The judge obviously asked him specifically about the meaning of the words “Daddy should be coming now” taken from Ms Young’s statement (though the words in Dr Cooling’s report of his interview with Ms Young were actually “dad should be home now”). Dr Cooling told the judge that he “did not interpret this as indicating that she had no fear or inkling that her father had been involved in the events which she had experienced earlier that day. He thought that this was the child seeking reassurance about her father, reassurance which was not forthcoming”. It will be recalled that Ms Young told Dr Cooling that she “kept on” saying “dad should be home now”.

29.It was against that background that the judge reasoned that Ms Young had not connected the events she witnessed with her father being involved (see [14] above). His logic seems to have been as follows:

i)Ms Young had not actually said that she remembered associating what she had witnessed with her father’s involvement;

ii)He did not find that surprising in a four-year-old, who would not necessarily have had the mental understanding to make that association;

iii)He (the judge) thought that, as far as Ms Young was concerned: “she had waved him off, he had smiled at her and he would be coming home later”;

iv)Dr Cooling had misinterpreted the words “Daddy should be coming now” (though the same would presumably apply to “dad should be home now”). The words: “Daddy is coming soon now, isn’t he?” would have betrayed anxiety;

v)Dr Cooling had been wrong to opine that Ms Young had associated the noise of the explosion and the sight of soldiers wearing the same uniform as her father covered in blood with danger to, or fear for, her father;

vi) Since a four-year-old mind works very differently to an adult mind, the judge’s opinion was that a four-year-old would not have appreciated that her father was in danger without witnessing the trauma herself;

vii) The judge’s own interpretation of the words that Ms Young used were that she had not made the association.

30. It seems to me that the judge was impermissibly allowing his own inexpert opinions about the mental capabilities of a 4½ year child to influence his evaluation of Dr Cooling’s evidence. It is not even clear from the judgment that he put those opinions to Dr Cooling to elicit his comments. The judge’s crucial opinions revealed by the judgment are that: (a) a four-year-old would not necessarily have had the mental understanding to make the association between the events she witnessed and her father, and (b) a four-year-old mind works very differently to an adult mind. These opinions were of an expert nature and contradicted the expert evidence without any proper foundation to do so.

31. In my judgment, in the circumstances of this case, the judge should not have allowed his own opinions, perhaps born of his personal experiences, to override Dr Cooling’s clearly reasoned expert evidence. The judge ought to have accepted Dr Cooling’s evidence and held that Ms Young had associated what she witnessed with danger to her father, and that her psychiatric injuries were caused by the events that she witnessed.

32. I take the view that the judge’s decision on the facts was clearly wrong and should be reversed. Had the judge accepted Dr Cooling’s evidence, he would have concluded that Ms Young (i) had made an association between what she had seen and her father, (ii) would have appreciated that she was seeing something unusual, frightening and challenging, and (iii) had some fear that her father had been involved in the events which she had experienced. Accordingly, the judge ought to have held that Ms Young had established a relationship of proximity with Mr Downey, because her psychiatric injury arose from witnessing events which she feared might have put her father in danger.

Conclusions

33.
I would, therefore, allow the appeal for the reasons I have given. I would award Ms Young damages of £121,500, including aggravated damages, as assessed by the judge, in respect of her psychiatric injuries.