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High Court critical of human 'crash-test dummy' experiments on BBC show, leading to award in excess of £1.5 million for injured presenter suffering from traumatic brain injury
“I find it astonishing that anyone thought that this exercise was a sensible idea. On his own account to camera, the claimant was simulating a road traffic collision of the sort that commonly causes injury.” It is fair to say that Mrs Justice Yip did not mince her words. She was clearly critical of the environment which led to a BBC television presenter suffering injury whilst carrying out various experiments as human ‘crash-test dummy’.
The presenter, who had a considerable scientific background, stated to camera himself that the experiment was not recommended. The BBC had been warned of the danger themselves, yet the tests went ahead. The presenter, Jem Stansfield, alleged that he suffered a “constellation of symptoms” producing a serious degenerative effect on his health and all aspects of his life. The BBC, on the other hand, argued that the tests left him with little more than “a moderate whiplash injury with depressive symptoms can properly be attributed to the crash tests.”
Having considered a raft of factual and expert evidence, the Claimant was awarded damages valued at just over £1.6 million, reduced to account for the agreed liability split (two-thirds in favour of the Claimant) reached prior to the hearing.
This judgment has been eagerly awaited, adding to the growing catalogue of decisions dealing with issues relating to minor and mild traumatic brain injury.
After a short hiatus since Hibberd-Little v Carlton  EWHC 1787 (QB) and Joseph v The Commissioner of Police of the Metropolis  5 WLUK 490, mTBI claims show no sign of disappearing and are likely to remain a hotly contested type of case as scanning/medicine develops and new legal arguments emerge.
Putting aside the Claimant’s high profile and the unusual circumstances, the case sees many of the issues dealt with in the likes of Siegel v Pummell  EWHC 3409, Hibberd-Little and Long v Elegant Resorts  EWHC 1330 (QB) considered again and gives us some interesting new lessons to take away.
As highlighted in the judgment, the burden of causation rests with the Claimant in these cases, and that in this instance, the Claimant was to prove that “the symptoms upon which he relies to underpin his claim were caused by the crash tests.” Mrs Justice Yip stated that “I shall remind myself where the onus of proof lies,” and “I keep in mind at all times that it is not for the defendant to establish an alternative explanation for the symptoms which are alleged.” It is helpful to have this principle reaffirmed as often claims will be framed in a way where Defendants feel compelled to offer an alternative explanation for the Claimant’s symptoms.
Weighing the factors for and against an organic brain injury carefully, the judge felt on balance there was an organic injury. This is of particular interest as she found an absence of clear evidence of post traumatic amnesia, usually a significant plank of any mTBI claim.
Although the judge had reservations about the Claimant’s reliability as a witness and noted at times he was “somewhat evasive”, “a poor historian” and his recollection on certain issues “not reliable”, she accepted he was “doing his best to give honest and accurate evidence”.
As is common in claims of this nature that reach trial, loss of earnings is by far the largest head of loss, accounting for 94% of the damages awarded.
The Claimant conducted the series of crash tests in February 2013 for a BBC TV television programme, which involved him being strapped in a rig and propelled into a post. The experiment was intended to replicate the impact of a car hitting a lamppost. He alleged that he subsequently suffered a litany of symptoms, including “chronic pain in the spine, head and face; visual disturbance; tinnitus; headaches; dizziness; nausea; vertigo, disturbed sense of smell; fatigue and reduced mental stamina; sleep disturbance; intolerance/sensitivity to noise and light; cognitive difficulties and personality change.”
This forced his exit from the TV show around 12 months later and preventing any subsequent employment other than sporadic consultancy work. The Claimant issued a claim against the BBC (“the Defendant”), seeking general damages, loss of earnings, and a variety of other special damages. As stated above, it was agreed that the Defendant would carry two-thirds of the liability for the claim, with the Claimant contributorily negligent for one-third. The issue of quantum (and causation) was much more contentious.
The Defendant reiterated the onus of proof was on the Claimant, and that ultimately, the claim was only of modest value.
Consequences on the Claimant’s health
The Court considered the impact of the crash tests, effect and ongoing consequences.
Reviewing the expert medical and factual evidence, the judge was keen to highlight that the various injuries formed part of a jigsaw, and alone could not explain the ongoing significant impairment experienced by the Claimant.
The judge concluded that the Claimant suffered an intrusive whiplash injury and a mild traumatic brain injury in the tests. On the issue of audio-vestibular injuries, the evidence of the Claimant’s expert was preferred, with the experiments being held responsible dizziness, balance problems and the onset of tinnitus sometime after the incidents. Finally, in relation to the Claimant’s psychiatric condition, the Claimant “had suffered organic injury upon which a significant psychological reaction was superimposed.” This reaction, a combination of depression and somatic symptom disorder, was held to be caused by the effects of the crash experiments. The conclusion of the litigation was identified as likely to provide benefit to the Claimant’s stress, but that the psychiatric condition would not entirely resolve on conclusion.
It was acknowledged that some elements of the claim could not be fully explained and were subject to differing opinions. However, the claimant was found to be “genuinely suffering a range of significant physical and emotional symptoms which mean that his life is substantially impoverished compared to the position before the crash tests.”
The Defendant had submitted that the Claimant had failed to mitigate his loss by ignoring a recommendation for treatment with antidepressants. Mrs Justice Yip found that the Defendant had failed to prove this, nor provided any indication as to how any such failure should be reflected. The Court found that his unwillingness to follow the recommendation was “part of the claimant's complex presentation,” and there was no evidence
Valuation of the claim
Having considered this, the Court considered the valuation of the claim, including the impact on the Claimant’s earning capacity, and his career trajectory.
In respect of general damages, the Court did not consider it appropriate to make an award for loss of congenial employment, as the loss of his career was fundamental to the loss of amenity suffered. Therefore, the award for PSLA took into account the impact on his career, and self-esteem. The suitable Judicial College guideline was bracket (iii) for moderate brain damage, with an award of £65,000 appropriate.
The loss of earnings represented the largest element of the claim, involved the traditional comparison of what he was likely to have earned but for the injury, and the earnings he had received, and would receive in future.
Mrs Justice Yip acknowledged that the Claimant had a well-established television career carrying a steady income stream, with the likelihood of greater success. There were likely to have been variations year-to-year, and it was accepted that predicting the career of a television presenter was difficult, albeit the skills of the Claimant would have been transferrable to production and engineering work should presenting opportunities decline. The Court assessed his gross earnings for the years to date, then assessed the sum of £265,000 per annum for future loss, with appropriate reductions for commission and fixed overheads.
On the issue of care, the Claimant’s expert was considered to have over-inflated the claim, with reference to the inclusion of a claim for a bed for £10,000, when a suitable alternative was valued at £600. The claim of past care was assessed at £18,750, reflecting the gratuitous nature of the care provided by the Claimant’s wife. However, there was limited provision for future care, restricted to an allowance for DIY and some activities.
The total damages award totalled £1,617,286.20 following the reduction for contributory negligence.