July 6, 2018

Clyde & Co secures a landmark victory on Subtle Brain Injury case

Clyde & Co has secured a major victory for Defendants on subtle brain injury claims.

Background

The Claimant was injured in a rear end shunt motor accident at a speed below 30 mph. Liability was admitted and the case proceeded in the portal until the Claimant transferred instructions to Dickinson Solicitors. 

Medical Issues

The claim presented thereafter was of an acceleration/deceleration injury resulting in a microscopic diffuse axonal injury (mDAI) with associated audio vestibular symptoms. It was alleged this subtle brain injury caused numerous persistent and debilitating symptoms including memory impairment, fatigue, balance difficulties, and personality changes. 

The mechanism of injury and symptom cluster were very similar to those arising in previous cases run successfully by the Claimant's legal team, including Williams v Jervis [2008], Clarke v Maltby [2010], Mann v Bahri [2012] and Siegel v Pummell [2014]. In each of these decisions, the Claimant was awarded a 6 or 7 figure sum for injuries sustained in what were essentially low to medium impact road traffic accidents.

The Claimant was a 29 year old teacher who, it was alleged, would have continued her career, moved into senior leadership, eventually becoming a head teacher. She resigned from teaching after the accident, alleging she was unable to continue with her career owing to the cognitive symptoms arising out of the brain injury. The Schedule of Loss included substantial claims for loss of earnings (£1.2m) and loss of pension (£1.3m). In addition, as a result of balance problems and the future risk of early onset of dementia as a result of the subtle brain injury, a care claim was pleaded in the sum of £1.45 million. The Claimant's final Schedule of Loss, served 3 weeks before trial, totalled £4.4 million.

The Claimant’s team of experts were experienced in litigation and whose evidence, on paper, dovetailed to support the mDAI case, based on the prolonged post-traumatic amnesia and the apparent absence of psychological symptoms following treatment. Over 60 academic articles were cited by the Claimant’s team in support of their diagnosis. In addition a raft of witness statements from friends and family were served, supporting the existence of non-specific ongoing symptoms. The case presented a further challenge as the Defendant’s expert assessments were recorded by the Claimant and transcripts admitted in evidence at trial.

Judgment

We were able to unpick the diagnosis of mDAI with challenges to the reliability of the Claimant’s reporting and the credibility of the Claimant’s expert’s conclusions, and the science upon which they were based. The Defendant’s core expert witness was specifically praised by the judge for his knowledge of the medical literature.

The judge did not accept the Claimant had proved her case on mDAI, preferring the evidence of the Defendant's core medical expert. The Claimant was awarded just over £41,000 reflecting the whiplash and low level psychiatric symptoms together with the treatment already provided. The award was less than 1% of the pleaded case and substantially lower than the Defendant's protective Part 36 offer, meaning the Claimant will recover no damages as they will be set off against the Defendant’s costs.

What can we learn?

  • Strategic litigation is required to challenge these complex claims.
  • The significant lay evidence served by the Claimant can be used to undermine the Claimant’s own case.
  • The medical literature relied on in cases of this nature is lengthy and complex and it is vital the Defendant’s experts are well versed in the papers.

The judgment can be read here.

Counsel for the Defendant: Mr Jonathan Watt-Pringle QC, Temple Garden Chambers

Counsel for the Claimant: Mr Marcus Grant, Temple Garden Chambers, instructed by Dickinson Solicitors

Authors: Chris Eccles (Legal Director) and Howard Mansell (Associate)