QBD (Wilkie J) 18/12/2014
DAMAGES – PERSONAL INJURY
BRAIN DAMAGE : FUTURE LOSS : MEASURE OF DAMAGES : ROAD TRAFFIC ACCIDENTS : WHIPLASH INJURY
On the balance of probabilities the cluster of persisting symptoms suffered by the victim of a car accident had been caused by a diffuse axonal injury sustained in the accident and not by psychological causes, despite the absence of evidence of a head injury in the forms of no loss of consciousness, a normal Glasgow coma scale and no evidence of lesions on his CT and MRI scans. There was an established concept of microscopic diffuse axonal injury arising even where the available scanning equipment did not reveal any damage to the white matter of the brain.
The court assessed damages in a personal injury claim following a road traffic accident. The claimant’s vehicle had been struck from behind by the defendant’s car. The damage to the claimant’s car was such that it had been written off. Liability had been conceded but quantum was disputed. The claimant put forward a claim of £2,175,235, just over £2 million of which was for future loss of earning capacity. The defendant’s counter-schedule denied that any damages arose in respect of any of the heads asserted in the claimant’s schedule, save in respect of general damages of £5000. The claimant had operated at a high intellectual level throughout his working life and held a senior level job in the IT industry. Immediately after the accident the claimant had severe headaches, problems with his vision, and cervical spine pain. Medical experts for both sides agreed that the claimant had experienced difficulties in his employment since the accident. The claimant’s medical expert believed that he had suffered from traumatic brain injury. The defendant’s medical expert was of the opinion that the absence of evidence of trauma to the head and the normal CT scan showed that there was no evidence that he had suffered a significant brain injury. The claimant alleged that his enduring physical, cognitive and behavioural symptoms were attributable to a diffuse axonal injury (DAI) to his brain brought about by the acceleration/deceleration forces applied to his head in the accident and that the fact that those changes were at a microscopic level did not render them inconsequential or non-existent. The defendant accepted that the claimant had sustained a minor whiplash injury in the accident, but argued that the claimant’s reported symptoms of headache, fatigue and memory loss were psychologically derived and that his headache might also be due to pre-existing recurrent migraines. The defendant also submitted that the accident had not affected the claimant’s ability to obtain and retain employment at the level he previously held. HELD: (1) The lay witnesses whose evidence was accepted as honest and reliable should be given significant weight. They were witnesses from different parts of the claimant’s life who spoke consistently about the range of changes in his behaviour and abilities. The evidence of the claimant’s wife was transparently honest and reliable and the court accepted her differentiation of his abilities and behaviour prior to and following the accident. The court had heard the claimant giving evidence over a number of days and did not believe that he was exaggerating his symptoms or reinterpreting events so as to support his case. He had become genuinely fatigued after giving evidence for a period of about two hours (see paras 462-473 of judgment). (2) The accident was a significant one. It caused considerable damage to both vehicles and necessitated the attendance of an ambulance and the fire brigade. The accident was consistent with the mechanism of injury described by the claimant’s medical expert as DAI and the claimant’s medical records were consistent with him having suffered from the cognitive symptoms of loss of short-term memory, inability to concentrate and continuing headaches from a time very shortly after the accident. The medical evidence was consistent with him having suffered an impairment of his cerebral function sufficiently adverse to affect his ability to do his job (paras 474-480 and 492-493). (3) The persistence of the cluster of symptoms for a period of years, interspersed with historic bouts of depression, was not explicable in purely psychological terms. The court preferred the evidence of the claimant’s expert. The defendant’s expert had failed to engage with the established concept of microscopic DAI arising even where the available scanning equipment did not reveal any damage to the white matter of the brain (paras 508-528). On the balance of probabilities the claimant had proved that his continuing cluster of symptoms was caused by DAI sustained in the accident, even in the absence of evidence of a head injury in the forms of no loss of consciousness, a normal Glasgow coma scale or evidence of lesions on CT and MRI scans. There were a number of factors pointing towards there having been a DAI on the microscopic level, such as the fact that the accident was a significant one, that there was evidence of a loss of consciousness, albeit only for seconds, and of post-traumatic amnesia. The mechanism of the accident was consistent with DAI and his cluster of symptoms was consistent with his having suffered a brain injury. Williams v Jervis [2008] EWHC 2346 (QB), Mann v Bahri and Clarke v Maltby [2010] EWHC 1201 (QB) considered (paras 562-573). (4) In relation to the claimant’s future earnings he could reasonably be expected to achieve some measure of success hiring out his services as a consultant or contractor over the long-term. However he could realistically only be expected to earn at a level of one-third of that which he would have done but for the accident. The claimant was awarded general damages of £65,000, damages for loss of past earnings of £21,688, treatment and travel costs of £30,000, retraining costs of £25,000 and loss of future earnings of £1,446,431. Damages assessed
Counsel: For the claimant: Marcus Grant For the defendant: John Leighton-Williams QC Solicitors: For the claimant: Dickinson For the defendant: Plexus Law