UK & Europe
Insurance & Reinsurance
Claims involving minor traumatic brain injury ("mTBI") continue to be the subject of protracted litigation and High Court trials. We considered this type of claim in our recent technical handling guide (and our accompanying introductory video). Many of the issues seen in the latest round of litigation are considered in our guide. There have however been some interesting new areas for the courts to consider and for practitioners to get to grips with.
Long v Elegant Resorts Limited
The claimant sustained a head injury whilst at work when he hit his head on a low part of the cellar ceiling. He claimed as a result of this incident he sustained a mTBI which consequently has had a serious effect on his life.
The claimant alleged he sustained a mTBI which was characterised by a period of post-traumatic amnesia ("PTA"). This caused a variety of symptoms affecting his ability to work or function normally. The claimant stated that the mTBI suffered “in the accident… developed into a Functional Neurological Symptom Disorder ("FNSD") and Neurocognitive Disorder due to TBI with Behavioural Syndrome.”
The defendant argued the claimant had a pre-existing Somatic Symptom Disorder ("SSD") and “the cause of that disorder was [his] redundancy and/or underlying SSD rather than the accident”.
It is of note that the claimant’s case does not make reference to a specific brain injury arising as a consequence of the incident. In similar mTBI cases claimants have alleged a diffuse axonal injury ("DAI"), focusing heavily on the scientific and medical literature to support this diagnosis. However, in this case the claimant pleaded a FNSD. One explanation as to why DAI was not a feature might be the mechanism of injury. In Long it was a strike to the head rather than a rotational injury. The previous reported cases all arose from motor accidents which might account for the nature of the injury sustained.
It is also important to note there was early / contemporaneous evidence within the medical records to support PTA in this case, which was absent from some of the other cases where successful Defences were raised, for example in Hibbert-Little v Carlton.
Indeed the Court found that the alleged PTA of several minutes could give rise to a mTBI, and “evidence of the severity of the impact is a relatively poor indicator of the likelihood of a person suffering mTBI”. Furthermore, despite a lack of evidence, it was possible for the claimant to have suffered PTA without visible signs of confusion. On this basis, the Court was satisfied that a diagnosis of mTBI could be made.
Moving beyond the medical evidence, the defendant submitted that the claimant had exaggerated his symptoms and provided incorrect reporting of his pre-existing fibromyalgia to the experts. However, the Court could not be satisfied on the balance of probabilities that his symptoms had been deliberately exaggerated, despite the claimant not mentioning his fibromyalgia to several of the medico-legal experts.
The defendant also submitted that the claimant had failed to give an honest account of the circumstances leading to his redundancy, and that this failure constituted fundamental dishonesty in line with section 57 of the Criminal Justice and Courts Act. Ultimately, the Court concluded there was no “dishonesty here which could be described as ‘fundamental”. The failure to consider the redundancy as a cause of his ill health was considered “probably a consequence of an unswerving conviction” that the accident was responsible.
As we have seen in the matter of Pinkus v DLG, section 57 fundamental dishonesty can form the basis of a successful defence for a subtle brain injury claim. However, what is apparent from this case is that any submission of fundamental dishonesty should be supported by “cogent evidence”. Alleging fundamental dishonesty is a serious step and care must be taken to ensure the cogent evidence required to prove it is available. In this case the court found it was not.
The claimant was successful, and recovering in excess of £500,000 in damages with additional sums in excess of £50,000 awarded pursuant to CPR36.178(4)(d).
Mustard v Flower
The case of Mustard v Flower provided crucial guidance on the issue of recordings of medico-legal examinations in 2019. The claim remains ongoing, and in March of this year, further applications were heard, including a pleading of Section 57 fundamental dishonesty made by the defendant.
The application and certain amendments to the defendant's Defence were considered by Master Davison. The Defendant had characterised the pleading as “simply giving the claimant fair warning that the defendant may… make an application under section 57”. However, the amendments were characterised as serving “no purpose”, as it was incorrect to label an application under section 57 as a ‘right’ that the defendant could reserve. In the circumstances, the “contingent and provisional plea" of fundamental dishonesty was disallowed.
The latter part of the judgment, which has attracted less interest, considered Diffusion Tensor Imaging ("DTI"). DTI is a scanning technique said to be of assistance in identifying evidence of Diffuse Axonal Injury which other scanning cannot detect. The claimant here sought to rely upon what amounted to a second neurologist's report from Professor Sharp, in addition to the report already obtained from Dr Allder.
Ultimately, Master Davison excluded this evidence and ordered any references to it to be redacted from the joint statement of other experts. However, the wider context of the claimant's attempts to introduce evidence by Professor Sharp is of note to practitioners.
Being at the forefront of DTI, and having published several papers on the topic, it appears that Dr Allder and the Claimant's Neuroradiologist Dr Butler, deferred to Professor Sharp over the analysis of the DTI scan and his conclusion that the image was "suggestive of the presence of diffuse axonal injury".
The use of enhanced scanning techniques, whether DTI or MEG or enhanced software to analyse the scans (3T or SWI) are becoming increasingly common in these cases. It will be of great interest to identify whether claimants in future hearings are able to successfully argue a report from a specialist in a particular type of scanning be allowed in addition to a report from a neurologist. In the event that such a second report is not allowed, claimants may have a difficult decision to make as to whether to instruct a specialist neurologist, such as Professor Sharp, alone.
Despite the exclusion of the substance Professor Sharp’s report, Master Davison did allow the experts to consider the imaging performed. He noted that “however unsatisfactory the commissioning of the imaging may have been, this is another genie that cannot easily be put back into the bottle”. This may become an important battleground in the likely trial in this case and indeed in future cases.
Stansfield v BBC
The recently publicised claim of Jeremy Stansfield against the BBC will be of great interest. Mr Stansfield is claiming approximately £3.9 million for injuries and consequential losses allegedly caused by injuries he sustained acting a ‘crash test dummy’ on a science TV programme.
It has been reported that liability had been admitted, subject to a reduction for one-third for contributory negligence. However, causation and quantum are disputed. Of particular interest in this matter is the availability of the footage showing the incidents in question, which may be crucial in assisting the Court in determining whether the injuries alleged were sustained.