Van Wees v Karkour & Anor [2007] EWHC 165 (QB)

[2007] EWHC 165 (QB)

Case No HQ04X00523

IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice Strand, London, WC2A 2LL

Date 14/02/2007

Before

THE HON. MR JUSTICE LANGSTAFF

Between

INGRID VAN WEESClaimant

Z. KARKOUR (1) A. WALSH (2)Defendants

Mr Marcus Grant (instructed by Dickinsons Solicitors’) for Claimant

Mr William Featherby (instructed by Berryman Lace Mawers & DWF Solicitors’) for the

Defendants’

Hearing Hearing dates: : 14 th to 17 th Nov inc & 21 st to 24 th Nov inc and 1 st Dec 2006

Judgment

[1]This claim raises unusual difficulties.

[2]It is one for damages arising out of the road traffic accident on the 22nd May 2000, when the claimant was almost 34 years old. She suffered a head injury. Her case is that the after effects of the injury have caused her to lose the chance of a career. The loss is said to be so significant, of a career potentially so glittering, that it is to be measured in millions of pounds: the schedule of claimed loss is just £23,681 short of 10 million pounds.

[3]The defendants accept liability for some loss, having settled differences between them, but say that the claim is grossly exaggerated.

[4]The difficulties arise because the claimant is a woman of high intelligence, with a full scale I.Q. measured now, post accident, by the neuropsychologist Professor Robin Morris at 128, placing her in the top 3 percent of her age group. On one occasion, whilst unable to work because of the after effects of injury, she told her G.P. she was reading Bertrand Russell. She is Dutch. This may well have been in English, one of her second languages. The damage she claims to have suffered is so subtle that it does not make her unemployable. Indeed, since the accident she obtained a high level corporate job with a starting salary in 2001 of ninety thousand pounds, which with annual bonus and benefits made up a total package well into six figures. Yet it is contended that if uninjured she would have had a yet higher IQ, and without the subtle diminutions in her abilities to perform at a high corporate level would command a yet greater salary.

[5]I have thus had to bear in mind throughout that she is a person who is well able to manipulate evidence and events, and have to be astute as to whether she has done so, as the defendants claim.

[6]The claimant was a pillion passenger on a scooter involved in a collision near to Ludgate Circus. She lost consciousness for a short time. It is undoubted that she suffered a head injury, with no significant orthopaedic injury. Eyewitnesses reported her fitting, and turning blue (indicating a lack of oxygen) at the time. She was taken to hospital, groggy and vomiting. There she was detained overnight. It is common ground that she suffered some post traumatic amnesia, the exact extent of which remains in issue.

[7]The accident occurred on the day she was due to begin work as one of two prime movers in a new start company. It is undoubted that she did no significant work for at least three, and possibly four months for that company. Since she would naturally have wished to work, and to achieve success with her entrepreneurial venture, and could not do so, this alone indicates the dislocation to her life which the accident caused her.

[10]The company did not properly get off the ground. By the time she returned to work for it, as best she could, the writing was already on the wall. She left the company, Executip, in December 2000. Effectively, it folded.

[11]She was then out of work until she secured employment with Vodafone in their (new) in-house corporate finance department, on 4th June 2001. She worked for them in Newbury, reporting to a David Anderson. He seconded her to Japan in February 2002, where she worked until mid to late July 2002.

[12]Although Mr Anderson recorded the view in May 2002 that she was achieving success in Japan, he then left the company. Her manager changed. Shortly thereafter, she was withdrawn from Japan, her career there having been disappointing as others viewed it. She returned to Newbury, where she must (I assess) have felt under something of a cloud.

[13]At the end of January 2003 the first of three significant blows struck the claimant. The first (according to her a real blow) was her being told on 22nd January 2003 by a Dr. Baker, to whom she had been referred by Professor Morris for treatment, that her cognitive condition would not improve. Second, on 27th January 2003 Mr Anderson’s successor, Mr Butterworth, who thought she had no long term future working in corporate finance, told her so. Her days at Vodafone were plainly numbered, with only a vain hope of a sideways move to another department. The third blow was to be involved in a car crash in the early hours of 1st February 2003.

[14]The claimant had not thus far been absent from work for Vodafone in consequence of the accident of which this case is concerned. She was, however, absent for periods of time following the crash of February 2003. The exact circumstances of that accident, and the extent of its after effects are in contention.

[15]On 14th July 2003, she “resigned” from Vodafone, securing a financial settlement. She was, in effect, dismissed. She had been living in Oxford, as a more congenial place to live than somewhere nearer whilst working in Newbury. In November 2003 she moved from there to London. She was out of work again and, whether causative of or consequent upon this, suffered deep depression.

[16]In October 2004 she began working for a German company in Cologne, by which she is still employed. She works 4 days a week. The financial benefits are considerably less than those at Vodafone.

[17]In this action she complains that in consequence of the accident of 2000 she has suffered and suffers mental fatigue, impaired short-term memory, constant headaches, reduced concentration, reduced ability to multi-task, occasional difficulty with word retrieval, some indecision (and impaired analytical skills), some dis-inhibition, irritability, a reduced tolerance to alcohol, reduced self confidence, some emotional lability and residual anxieties when cycling in traffic. She has complained of problems in combining work with personal relationships.

[18]It is a fact that she(a) complained to treating doctors generally of such symptoms prior to leaving Executip, but seldom thereafter;

(b) did not tell Vodafone that she had suffered the accident of 2000, indeed managed to disguise it from them; and

(c) indicated to her doctor 5 months after the accident that she had headaches but “nil else”, yet complained of the range of symptoms set out in the previous paragraph when referred in February 2002 to Dr. Elian by solicitors whom she had contacted through “Claims Direct” for a medico-legal assessment.

[17]The claimant contends that she suffers from a subtle degree of short term memory loss, low grade headaches which occasionally become severe, a diminished ability to concentrate, and mental (not physical) fatigue particularly noticeable as the day wears on. These problems do not prevent her being a highly able and achieving woman, nor are they serious when viewed in comparison to the population as a whole. She complains, for instance, that her memory is reduced to average – it is the comparison with what it was before her accident that demonstrates how much she has lost in functional terms, and which translates, in a case such as this, into considerable compensation.

[18]The claimant’s primary case is that the damage suffered is organic and therefore will not improve. This, and not any psychological overlay, has caused the entirety of the cognitive deficits from which she now suffers. She has made brave efforts to continue as before, for instance obtaining and keeping the job at Vodafone despite the difficulties it caused her.

[19]The defendant, through Mr Featherby, says that the claimant is consciously exaggerating. For instance, she complains about a lack of earnings, yet obtained a job with Vodafone which gave her a rate of pay higher than she had ever enjoyed before. There is, say the defendants, no organic damage. If, contrary to Mr Featherby’s primary case, the claimant is not consciously exaggerating then she is suffering from sub-conscious exaggeration, or psychological factors (such as a post–concussional syndrome) from which being psychological she has a prospect of recovery which she would not have from brain injury, being organic.

[20]The problems of assessment and interpretation in this case may neatly be illustrated by two examples. First, the claimant told me that she felt she could not tell Vodafone of the accident of 2000, having deliberately failed to tell them of it upon appointment in 2001. She was thus someone who was admitting to being prepared to maintain a deliberate deception, where it suited her interests. When asked whether she would have maintained her denial if a manager at Vodafone had specifically asked whether she had suffered a previous head injury, or serious accident, she neither said that she would have done so, nor immediately responded that, of course, being an honest person, she would have told the truth. Instead, she told me although she may well have maintained the denial, she was unsure precisely what she would have done. She had never actually been placed in that position, and therefore could not say with certainty. This - apparently genuine – response avoided the pitfalls of either more obvious answer. If she had jumped to convey a ready acceptance that she would of course have told the truth, it would have led the court to regard her response as frankly dishonest, or at least disingenuous. If she said she would have maintained the denial, she would have confirmed the view that she would be dishonest when it suited her. Her answer left open both options (that she was in fact genuine; or than she was in fact exaggerating) though my conclusion tends to the former.

[21]Secondly, her case as opened by Mr Grant emphasised the fatigue which came upon her in her current German job, such that (in his florid phrase) by the close of the normal day she was fit for nothing more than filing. She was cross-examined for well over two days. On the first late afternoon that she faced questioning (which was never less than rigorous and demanding) she did not visibly flag, nor ask for “time out”. Mr Grant, however, did so, on her behalf. Although I acceded to his request, I inclined to think there was more of forensic posturing than reality about it, an impression very much confirmed upon the last afternoon during which she gave evidence. She then became positively animated, to an extent well beyond that she had been in the morning, was lively and showed very considerable mental control. This behaviour in the witness box would suggest that she was not as disabled as claimed; but nor was it the behaviour to be expected of someone who was falsely attempting to convince the court that by afternoon she was worn out. I have to remember her considerable preserved intellect: the question is whether this behaviour should be assessed as demonstrating her bona fides, or as being adopted deliberately as intended so to demonstrate (after all, she could not forget that the evidence was that she handled a highly responsible job at Vodafone for more than 18 months without having a day off sick, and she would have realised that she must therefore avoid behaving in a manner which suggested that she was not capable of doing so, for this would be seen as patently dishonest). Yet there remains room for regarding her presentation in the witness box as inconsistent with much of the claim put on her behalf.

Approach

[22]The approach which I must take is to evaluate the claim, and the claimant, on the basis of the whole of the evidence before me. Both counsel inclined to ask me to have regard to evidence which was not before me (for instance, on the one hand the Defendants complained that reports from a Dr. Johnson, a consultant psychologist instructed on behalf of the claimant, were not put before the court, and that the claimant’s parents might have given evidence comparing “before” and “after”, and on the other hand persons such as Zayaid Kharkour (the first defendant) who was the prime mover, and managing director of Executip as well as the rider of the scooter from which the claimant was knocked on 22nd May 2000 could have given evidence for the defendants, and it was plain from cross examination that there had been some surveillance of the claimant in Germany, yet no direct evidence of what this showed was called.)

[23]As to this, I cannot determine this case upon evidence which I have not heard, and I shall not do so. Though when considering the probabilities of the rival accounts, against which evidence actually given must be measured, regard may in general terms be had to evidence which it is within the power of one party to present and the power of the other party to refute, I cannot legitimately infer that the evidence of Dr. Johnstone or the claimant’s parents would hurt the claimant’s case any more than I can conclude that the evidence of the defendant and his surveillance witnesses would assist it. So, I shall review the accident to see whether it and its immediate effects might have been such as to give rise to the complaints which the claimant asserts, assess her and her evidence, the lay evidence of friends and colleagues, and the medical evidence. My assessment of her will be central, in particular to determining why it was that she was asked to leave Vodafone, and how doing so affected her. If her losing employment there was nothing to do with the accident of 2000, then it seems to me she has no claim for continuing loss thereafter. I cannot accept that the job at Vodafone was a less well paid job that she would otherwise have achieved. If, however, it was at least in part in consequence of the accident, then a judgment must be made of the extent to which this was so, which will inform my view of her job prospects as they currently are, compared to those which she would otherwise, uninjured, have enjoyed.

[24]Her actual condition can be no worse than her presentation in the witness box, since her case is that she suffered an organic brain damage which is not progressive, and is currently free of any psychological symptoms other than some which may possibly persist at a sub clinical level. So I am entitled to regard her functioning in the witness box as demonstrating that which she is capable of. Finally, I must assess the person I see her to be in the knowledge of her past employment history.

The Accident

[25]Five records of separate telephone calls to the emergency services from passers by, or nearby shopkeepers, have been put before me. It is possible from these to time the accident as occurring at 17.17 hours. A car turning left came into collision with the scooter on which the claimant was riding as pillion passenger. The car may have been travelling at 5 to 10 m.p.h, but the scooter at 25 to 30 m.p.h. The claimant was wearing a helmet. She was knocked from her seat. The side of her helmet was damaged. The telephone reports show, and I accept, that she lost consciousness, appeared to be fitting and seemed to be turning blue. Two ambulances arrived, the first nearly 5 minutes after the accident. The ambulance form completed by Ambulance man Edmund noted that she was “concussed. Initially no verbal response.” Evaluations upon the “AVPU” scale completed by the ambulance personnel (which measures the degree of consciousness by whether a patient is alert (“A”), responsive to voice (“V”), responsive not to voice but to pain (“P”), or unconscious (“U”)) showed when first done that she was responding to pain alone (“P”), though shortly after that she was recorded (by the second ambulance crew) as alert (“A”). She was scored at 14 on the Glasgow Coma scale, a more refined measurement than the AVPU measure, on which a score of 15 represents full consciousness. A score of 14 indicates depressed consciousness. She was seen to vomit on the scene. On the way to hospital she vomited again. She required initial administration of 100% oxygen (no doubt because she was turning blue), which was reduced to 40% oxygen therapy in the second ambulance, by which time the oxygen saturation in her blood stream was measured at around 98%.

[26]Just over an hour after her accident, she arrived at the Accident and Emergency Department of St Thomas’s Hospital. She was by then recorded as fully alert and orientated but was unable to recall events and complaining of headache. The admitting doctor recorded that she had been unconscious for 2 minutes, that she remembered “ambulance only” (indicating a degree of post traumatic amnesia) and that she had suffered a significant concussion. She was detained overnight for observation.

[27]From this information, I find that:-(a) She was unconscious for at least 5 minutes (there is no source or support for the figure of 2 adopted in A&E);

(b) She suffered a brain injury, which I accept from Mr Price was epileptic, and the loss of some control of breathing (hence her turning blue). This, the unconsciousness, and the subsequent headache and the immediate loss of some memory seem to me consistent with the mechanism of the accident.

[28]My impression that there was undoubted brain injury is confirmed by the subsequent history, which was one of dislocation of the claimant’s life for some 3 months or so at a time when compensation is highly unlikely to have been on her mind.

[29]Undoubted brain injury does not necessarily mean damaging long term consequences. This may be so with severe brain injuries. It is unlikely to be true of head injuries of minor severity. Moreover, symptoms which persist long after mild or moderate head injury are more likely to be psychologically than organically mediated, and hence theoretically amenable to long-term improvement, whereas the same is not true or those persisting after a severe head injury. Hence the claimant placed emphasis upon an assertion that she suffered post traumatic amnesia of such a length as to demonstrate at least a severe head injury.

[30]Thus, the claimant placed reliance upon Mr Price, a neurosurgeon who spent over 40 minutes more than 4 years after the accident assessing her post traumatic amnesia for medico legal purposes. He estimated that the duration of that post traumatic amnesia was more than 9 days.

[31]Miss Gillian Levett saw the claimant in her capacity as a (treating) consultant clinical psychologist in March 2004 (again, it will be noted, some 4 years after the accident). She was also instructed on a medico legal basis, and again took a lengthy and careful history of the duration of post traumatic amnesia. Her conclusion was that this had lasted “over 24 hours”.

[32]Post traumatic amnesia is not necessarily a complete absence of memory. By definition, it begins at the time of the accident. It lasts until the return of continuous memory. Thus the existence of islands of memory, punctuating periods of loss of memory, is not inconsistent with a state of PTA. Indeed, evidence of their existence is very characteristic of it. The claimant has what seems to be such isolated but clear memories in a sea of non-recollection.

[33]Broad measurements have been adopted, from experience, to categorise head injuries. Thus a post traumatic amnesia of less than 1 hour indicates a mild head injury. That of less than 24 hours indicates a moderate one. That between 1 day and 1 week indicates a severe head injury. Beyond a week is a very severe head injury.

[34]In his presentation of the claimant’s case Mr Grant stressed the importance of these categorisations, and a necessity to establish them clearly by careful questioning over time, to distinguish what is truly recollected by the patient from that which the patient has reconstructed with the help of, and information given by, others. This process must, he argues, recognise that an accident victim may be reluctant to recall painful memories. Thus it is appropriate to question such a person sensitively. This takes time. From the results that Miss Levett and Mr Price obtained he urged a conclusion that the head injury was at least severe, which in turn led him to argue that the court should credit the behaviours for which the claimant sues and that it should accept that she has indeed suffered significant brain damage.

[42]The claimant herself referred more than once in her evidence to various experts having performed a “proper” PTA assessment, and others (those instructed by the defendant) not having done so. This view, however, seems to me to be largely a forensic construct. Although the length of post traumatic amnesia was described by Dr. Lewis, consultant neurologist, called on behalf of the defendants, as “the gold standard”, it is one of a number of means by which an estimation (no more than that) can be made as to whether an individual has suffered a head injury and if so, and of what likely severity it is. I can understand the importance of it for the purposes of treatment. What is a good servant for those purposes becomes in my view a bad master in a compensation claim. I do not think there is any inherent magic, such as Mr Grant appeared to claim, to the process of assessing the length of post traumatic amnesia. Dr. Lewis said it would take about 10 minutes. Criticisms of this by Mr Grant as being unreasonably short are in my view misplaced. The task is a relatively simply one: identifying what memories an individual actually has following an accident, until the time of return of “normal” memory (which inevitably will not play with the smooth continuity of a cinema film). I see no reason why this cannot and should not be done entirely adequately within such a period as Dr. Lewis suggested, and I accept his evidence on this.

[43]The defendant’s case as to post traumatic amnesia was that much of it was contrived. Taking as his starting point that those matters which stand out as islands of memory in a sea which is otherwise misty will remain stark and constant, Mr. Featherby invites comparison of the reports given by six different doctors (one of them Mr Price on two occasions) and by the claimant’s witness statement, with a view to demonstrating that these do not show consistent memories. This overlooks the fact that it should not be thought surprising that slightly different reflections of such clear individual memories as the claimant has should be given to different listeners (who then separately report what they see of importance). Far from demonstrating an inconsistency in report, I regard there as having been a consistency of those reports over time, from February 2002 to June 2006, in the specific memories which the claimant says she has.

[44]Thus I accept that she says, consistently, that she has no recollection of the accident or its immediate aftermath; that her first recollection (to those who specifically sought such islands of memory) was vomiting in the ambulance or being in the ambulance; moving as if on rails in hospital on some form of trolley or stretcher; being checked upon in hospital (although this was not said by Mr.Price to have been reported to him on 1st June 2004, it was reported just a few days earlier by Dr. Lewis: and my judgment of the claimant is that if she had set out to deceive she would at such a short interval have easily remembered that which she had said to each.) She has a memory of flagging down a taxi, but no memory of being discharged from hospital, though the medical experts would have expected her to recall it if she had continuous memory at that stage. Thus far, these recollections have been consistently given throughout. Her recollections thereafter are somewhat hazier, and arguably less consistent. This is because, as she put it in her statement, she spent most of her time at her flat in Kensington High Street on her own. At some stage, post accident the manner of this spending of time became an actual memory. Before that, however, it may not have been. The difficulty of assessment here is that being on one’s own, “on the sofa”, doing very little all day long over several days is not punctuated with any obvious event of such a dramatic character that an inability to recall it now indicates a loss of memory at the time. Experience is that specific memories of the hum-drum from moment to moment are unlikely, even for those with superior faculties who have suffered no injury.

[38]Conscious of this point, Dr. Lewis, whose evidence on this I accept, pointed out that the claimant in her witness statement described in general terms this period of time, post accident in her flat. The fact that she was able to say that she sat on the sofa, and did little, suggested she remembered it, even if on a generalised basis. Mr Price, in answer to the court, recognised that there might be no specific memory of such a period which could said to have been forgotten. He was impressed by the fact, as he thought it to be, that at a weekend following the accident, over nine days later, the claimant had visited the parents of her boyfriend, Michael Prior, and whilst there had gone to visit Jane Austen’s house. However, I have no specific evidence that this visit happened. Michael Prior, who could have given evidence about it, does not do so. His description of that weekend tends, rather, to exclude the possibility. The claimant does not say that she did. Indeed, it would be inconsistent with her claim to have forgotten it that she should do so. In the absence of such evidence I cannot accept Mr Price’s conclusion that post traumatic amnesia lasted for at least nine days. Further, he is not true to his own conclusion, for that would justify a description of a head injury labelled “very severe” which is not the description he gives it. Nor did I find Mr Price a satisfactory witness. He told me in chief that he thought it significant that there had been loss of consciousness, that she had turned blue, suffered an epileptic fit and then had some confusion, yet his first expert report for the purpose of litigation appeared to assume that she had no loss of consciousness. Despite its apparent importance to him, he had not seen (nor, it appears, called for) the accident and emergency records. He was not clear upon the importance of the length of time for which there had been actual loss of consciousness, nor what significance he attached to “impairment” of consciousness as opposed to “loss” of it. In some of his answers he appeared more of an advocate for the claimant than an objective advisor to the court – thus in reviewing a letter written by a neurologist to whom the claimant had been referred for treatment (Dr. Hyman), wherein Dr. Hyman suggested that after 20 minutes the claimant’s memory was substantially intact, he sought to argue away those conclusions rather than treating them with the respect I would have anticipated. He thought the focus of Dr Hyman was on the current symptoms, not on evaluating the past - which he (Dr Hyman) was interested in practical management of the claimant’s condition, in respect of which it would make little difference to know what the post traumatic amnesia was. This was what Mr. Price said when invited to look at the first page (bundle, 1001) of the letter. It was apparent from the following page that Dr Hyman indeed placed considerable emphasis on post traumatic amnesia. Mr Price now said that if he (Hyman) had taken a more detailed history he would have discovered that which Mr Price did.

[39]Mr. Price had estimated a PTA of at least 9 days. When referred to Miss Gillian Levett’s opinion that there was a PTA of “over 24 hours” he commented that his impression was that she “meant quite a bit longer” than 24 hours. There was nothing to justify this impression: the words were simply as I have quoted. It appeared to me that he was straining other material to fit his own conclusion. He continued in evidence to say that he had presumed that the claimant had had visitors, this presumption being based upon the fact of her being someone who was popular, with many friends. He accepted this was “soft” not “hard” evidence (there was, indeed, no direct evidence of it). Yet this perhaps ignored the claimant’s own express recollection that she wished to be on her own at the time, as put in her witness statement (which Mr.Price had read). It was on the presumption that she had had such visitors that he was able to assume that she had forgotten their visits, thus enabling him to determine a duration of PTA. When referred by the court to the claimant’s witness statement, in which she described the un-emphatic nature of most events during her early recuperation, he began to recant upon his own estimate – the PTA might have been “a little less” than he had first estimated and memory may have been “more continuous than I had thought”. Finally, having criticised other doctors for failing to take a “full PTA history”, and having described how he himself spent 45 minutes doing so, he defended a final question from defence counsel by regretting that he did not spend as long on the assessment as perhaps he should have done.

[40]Later in this judgment I will deal with Miss Levett’s evidence. At this stage, however, I simply express my conclusion that:-(a) the accident involved head injury;

(b) the injury was of moderate severity;

(c) I am uncertain whether the PTA was less than or much more than 24 hours (because, the claimant being at home on her own at the end of that period it is difficult to assess precisely when continuous memory may have recommenced) but regard it as being of that order or, if anything, just a little over the 24 hours;

(d) The accident had immediate, dislocating effects which began to wear off only gradually. I acknowledge that Mr Price, alone amongst the experts, discovered that the claimant suffered a loss of the sense of smell in one nostril which might indicate nerve damage consistent with a moderately severe head injury. However, he had not looked at the medical records, from which he would have seen that the claimant had suffered previous ENT problems which might have been related to it: and since he his referred to this factor in a manner which suggested to me he regarded it as make-weight support for rather than clear proof I felt I could not rely upon it as helping my determination.

Assessment of the Claimant

[41]The principal plank of the defendant’s case is an attack upon the credibility and reliability of the claimant’s case. I do not accept this: my view is identical to that expressed by the neuropsychologist called for the defendants, Professor Beaumont. He considered that, although the claimant had been un-cooperative with him when first they met, and notwithstanding the fact that she had failed a reliability test amongst those he gave her at his assessment, on the balance of probabilities she was not consciously exaggerating her condition.

[42]Ingrid Van Wees is woman of definite views, in particular(a) as to her own mental abilities:

(b) as to her state of health; (e) as to the causes of that state of health, and the remedies for it and (linking these three points) (f) as to her body’s ability to be trained to overcome health problems, and hence as to the utility of her consulting doctors who would not provide such training. 43. In my view, she had expectations of the future (rather than a hope or ambition for it) that she would have succeeded in her career, and could have done so, and that she would recover from any of the lingering after effects of her accident. She links the two by blaming her accident for her own failure to achieve the expectations that she has of herself: she is not someone who in my view easily admits failure, nor easily accepts self-criticism. In a revealing comment (the thrust of which coincides exactly with my own impression) Doctor Hyman said of the claimant on 13th February 2003 that she “came across as someone who was attempting to be immensely controlled about life events, and when I asked her if she had been depressed she said she didn’t have time for that type of problem.” This impatience with herself was evident at times in the witness box. I thought her someone who would suffer frustration at an inability to achieve, or maintain success. 44. There are aspects of her evidence that give me cause for concern. Thus, she has described to me the cause of the road traffic accident in 2003 as being her falling asleep, through a fatigue linked implicitly with her mental condition following the accident subject to this claim. Yet, almost contemporaneously, two notes in separate hands made at the hospital to which she was admitted overnight described the accident as having occurred when she “slid”, possibly on ice – which is inconsistent. Mr Grant attempted a forensic reconciliation of the two accounts which was specious and did all the more to emphasise the difference. Moreover, the accident occurred in the early hours of the morning – yet this was someone who claimed to have to go to bed early because of the mental fatigue engendered by the accident of May 2000. This second accident caused her to take time off work in apparent depression – yet her friend Doctor Bruinvels gave a description of her as seeming entirely normal when, on 4th February 2003 (only 3 days after the second accident) they met up in London so the claimant could buy a replacement car. 45. Next, she has stressed a degree of social isolation. Reading her first witness statement, it appears that her relationship with her boyfriend at the time of the accident, Michael Prior, was fractured by it, and she has had no, or at least no significant relationship since. Yet this is not so. She had four holidays away with a Mr Jeal, and spent some time living with him. It is plain that she is currently enjoying a fulfilling relationship with Mr Fendrich, whom she called as a witness. She was slightly coy about her relationship with him, though ultimately I concluded this was because of the personal nature of the questioning rather than any desire to deceive. 46. She was not as forthcoming in earlier statements as in later ones about continuing her activity in sailing (at which she had once aspired to a high competitive level). 47. Further, Doctor Jacobson expressed the view that she was exaggerating. 48. Despite these reservations, however, I do not on balance regard the claimant as consciously exaggerating her case. There were a number of occasions in evidence which she could have accepted a forensic lifeline thrown to her when the evidence seemed difficult. She declined it. Instead, she tended to reassert that which she knew. She had a tendency, sometimes, under pressure (particularly in respect of dates) to retreat to what she had said in her statement. This was, I felt, to ensure consistency, not because she was inventing an account, and could not recall it, but rather because she was, genuinely, concerned that she did not entirely trust her own mental recall. This approach was consistent with her view of her own deficiencies. I had a considerable opportunity to observe her. In the main, I accept her account as being that which she believes. (However, in the light of my view that she had too high expectations of herself, and tended to exaggerate her difficulties caused by the accident as self-justification for her failures to achieve them, this is not to conclude that I accept her case). 49. She was in my view, plainly not incapable. She displayed no marked fatigue. She was not depressed. She was not slow in processing information. She did not display a poor memory. She showed no lack of concentration (though on occasions she appeared to think that she needed to concentrate harder than perhaps she did). She showed very little dis-inhibition (thought there were a couple of flashes of this, which could have been a Dutch unfamiliarity with English legal process). She can plainly multi-task. As both Doctors Price and Lewis report, she appears pleasantly animated in conversation. However, Mr Noble, an orthopaedic surgeon to whom she was referred post accident for an operation to her knee for injuries sustained pre-accident, described her as “pleasant but quite intense” (page 986). This is accurate. 50. I am quite sure she genuinely feels that she is not the person that she once was. Much of the lay evidence supported this from a number of different perspectives. Broadly, I accept that evidence. Although as Mr Featherby points out, a number of her friends saw only snapshots of her, and on occasions when (as I conclude) her presentation was effected by depression superimposed on top of any deficiencies she may have suffered in the accident, I accept that she does not have the “edge” she once did. However, this is a fine judgment: the deficit is not a gross one. I have to be careful to disentangle the symptoms of depression, and the effects of natural ageing (an active, sporty 33 year old, absent any brain injury, may appear brighter, fresher and more active than the same individual at 40, absent any brain injury at all). 51. I incline to think that the accident in 2000 has been a handy explanation, to herself, as to the reason for the inability of her career to progress as she had expected it would 52. However, this is not say that I think she suffered no injury at all in the accident. I was impressed with the care and carefulness with which Professor Morris gave evidence. The tests he administered in October 2002 (when she had worked for Vodafone for over a year but, as I have already suggested, found herself under something of a cloud following the disappointment of her return from Japan, but before the events of early 2003) obtained a pattern of results which pointed towards somebody who was of high intelligence before the accident, but who now had specific areas of weakness including memory impairment and a specific impairment in initiation. It is not disputed that such areas of weakness not only accorded with her own reports of cognitive difficulties, but were the types of cognitive weaknesses found in patients with closed head injury. He commented:-The deficits are technically mild, but sufficient to have a substantial effect on her otherwise superior range abilities, hence the way she describes her impairments. In other words, mild deficits in the context of a high functioning individual are likely to have a substantial impact on perceived functioning, particularly where their occupation requires a superior range of abilities. 53. I accept this. I accept, too, the comment made on page 7 of his second report (2006) in which Professor Morris said:

“Her cognitive difficulties, coupled with her expectations of being a higher achiever in the workplace, means that she is under stress in occupational settings.”

[54]Except where I have specifically indicated otherwise, I did not find the evidence of Mr Price helpful. I have already set out the reasons for this.

[55]There was much, too, in that which Dr Jacobson said which I did not find particularly helpful. On occasions, he struck me as seeking to justify a conclusion he had initially wished to reach, rather than moderating his view to account for other, subsequent, information. He alone of the medical experts was prepared to regard the claimant as frankly exaggerating. I have already indicated that I do not take that view. However, there was much he said which was of value. I accept what he had to say in preference to Miss Levett’s evidence as to whether the claimant suffered post traumatic stress disorder, following her accident. He said he could find in the statement of the claimant, which he had before him at interview, no reference to her having felt acutely horrified by her accident. This is one feature to be expected of PTSD. The other diagnostic features of PTSD did not (summarising his evidence) jump out at him from her account. His approach was therefore to take those which the claimant was putting forward as her principal complaints, and attempt to explain them on some tenable psychiatric or psychological basis. This may be contrasted with the approach which in my view Miss Levett tended towards, of considering that in any accident in which a person banged their head when knocked from a scooter they might possibly suffer Post Traumatic Stress Disorder, and then to begin close inquiry to see if she could elicit sufficient of the individual symptoms identified in DSM(IV) from the patient to support this diagnosis. Miss Levett’s evidence was that the intense fear required by the criteria had been experienced by the claimant following the accident when she learned what had happened (she did not, of course, remember it). She had helplessness, in the face of the events of the accident, when she knew what had happened. This, she maintained, could occur with reconstructed experience of an accident, as well as directly remembered experience. She did, however, accept that no treating doctor had taken any such history, save that she herself had to teach the claimant how to manage the symptoms which she, Miss Levett, had elicited from her.

[56]Miss Levett, also claimed to have detected that the claimant suffered from agoraphobia. She did not, however, give this as a further, separate diagnosis but regarded it as part and parcel of the symptoms of PTSD. She added that this was caused by feelings of being trapped, and was capable of standing separately as a diagnostic category.

[60]I thought the approach of Miss Levett to be one of straining the symptoms to fit a possible diagnosis when they did not fit naturally. Doctor Jacobson’s more practical, less theoretical approach has more to commend it. I find it difficult to think that in the circumstances of this particular accident the claimant did indeed feel “trapped”, or that intense helplessness would have been caused to her by the circumstances of the accident itself.

[61]Although I have rejected attaching the formal label “Post Traumatic Stress Disorder” (or, indeed, agoraphobia), to the claimant’s suffering, nonetheless I do accept that the claimant suffered many of the symptoms which are often to be found in cases of PTSD. Thus I accept that she finds many crowded situations uncomfortable (though not to the point of avoiding them altogether – for instance, she attended a concert performed by Robbie Williams at a football ground in Holland). Similarly, she is more wary in traffic, riding a bicycle, than she would have been but for her accident. However, this is at a manageable level. I accept that nearer in time to the accident such symptoms would have been worse. Accordingly, in compensating Miss Van Wees, I have to make allowance for continuing emotional symptoms as well as those continuing elements of brain damage which I have found, accepting Professor Morris’s evidence as I do, to be present. This is not a case of compensating symptoms falling short of psychiatric injury (which is impermissible), but of recognising that the claimant was undoubtedly injured organically and these symptoms are amongst the attendant consequences.

[62]On other aspects, however, I preferred the testimony of Miss Levett generally to that of Doctor Jacobson. She was careful (if, as I have noted, a little too careful to scrutinise the possibility of PTSD: her evidence in respect of PTA displayed the same desire to identify formal markers, e.g. the category of brain damage as displayed by PTA; the elevation of the process of identifying when continuous memory returned into an art form, and attempting to pigeon hole the claimant into a pre-existing box rather than present her as she was). However, she struck me as otherwise duly careful, concerned, and attempting to give the best assistance she could to the court. She saw much more of the claimant than did Doctor Jacobson. She treated the claimant. She did so successfully. In doing so, she saw the claimant on a number of occasions spread over a considerable period of time, in 2004. Her honest assessment of the claimant’s genuineness in complaining of the symptoms she does has confirmed my own view, and I accept it.

[63]Professor Beaumont found the claimant uncooperative at the first assessment he did, when he failed to establish a good rapport with her. It was on that occasion that she failed a test of reliability, though not to such an extent as necessarily to mean that she must be malingering. On a second occasion, however, rapport was much better. On that occasion, the reliability test administered in her native language conveyed the opposite to the first test, administered in English: namely, that she was indeed being reliable. Professor Beaumont seemed to me to be troubled by the impression he had formed that the claimant was probably genuine, yet that she complained of symptoms of which seemed to him to go beyond those one would normally expect from the sort of organic deficit that might be suggested by the results of the tests administered. He did not himself think that his tests had reliability, because (in particular) they were taken by someone whose first language was not English, and that she had suffered from depression. He thought, therefore, that Professor Morris’s conclusions could not properly be relied upon, since they suffered from the same defects.

[61]I have already expressed my conclusions that there was here a head injury of moderate severity. I find on the medical evidence:-(a) the claimant suffered subtle damage to the brain, of an organic nature.

(b) this causes some reduction in her memory capacity – not, I think, functionally as great as that which Professor Morris attributed to her, but real nonetheless.

(d) I do not accept that the psychological symptoms can authoritively be labelled a “Post Concussional Syndrome”. This label is, as was agreed before me, controversial. But I do think that, before she obtained her job with Vodafone, the claimant’s life was significantly dislocated by the accident. She suffered headaches, reduced concentration, a degree of dis-inhibition, and a memory which was less good than it had been on a short term basis, all of which gave her a degree of mental fatigue which she had not experienced before. She was frustrated by this, which caused low mood, which in turn made her appear to those who knew her well as having suffered a greater degree of damage than organically she did. (Low mood or depression caused by the after-effects of the accident is compensable as a foreseeable result of it; however that which is caused as a result of an inability to live up to her own self-image is not. If, however, a wrong materially contributes to an injury or medical condition, the injury is compensable – Bonnington Castiongs v. Wardlaw

[1956] AC 613

, McGhee v National Coal Board

[1973] 1 WLR 1

, though if the accident or condition would have occurred anyway then the question is whether the wrong has aggravated or accelerated the injury or condition. If so, and on the evidence it is possible to assess the extent of the aggravation or acceleration, the defendant is responsible only for that, and the claimant is not to be compensated for the entirety of the condition: Thompson v Smiths Shiprepairers (North Shields) Limited [1984] Q.B. 405; Holtby v Brigham & Cowan (Hull) Ltd.

[2000] ICR 1086

, CA)

[62]Miss Van Wees obtained a degree from Delft University in Mechanical Engineering, graduating in 1990. She was described by one of her witnesses as “solid” as a student. This suggests to me someone who was more average than brilliant. Her degree was not at the very top level.

[63]In 1991 she began to work for Unilever as a management trainee. She worked first in process control and production engineering. In 1993, she was promoted to the role of Assistant Product Manager, Foods, focussing on marketing. She obtained a BSc Marketing degree on an evening course. In 1995, she left Unilever to work for Core Counsellors Consulting, a small strategy consultancy firm in the Netherlands. A subsequent reference from that company described her working as a junior consultant for a year, and then said this:- “Ingrid appeared to be highly intelligent. Her social awareness and communication skills can be improved.”

[64]The reference was, in my view, lukewarm, describing someone who could be abrasive. Enron, to whom the reference was addressed, were concerned enough by it to speak to the author. He confirmed that she was very bright but added that her communications skills were not very strong, that she was a very strong individual and seemed to have trouble working with others, working better on her own as she was not really a team player.

[65]In 1996, at the age of 30, she went to the INSEAD at Fontainebleau to obtain an MBA. INSEAD is one of the six top-ranked MBA schools in the world. She elected to specialise in international corporate finance. Although she was not on the “Dean’s List” (reserved for the highest flyers, or possibly the hardest working) she achieved an MBA. Because she did so at INSEAD, it was a valuable qualification.

[66]She sought employment at Enron as an MBA associate, and obtained this at a salary of £45,000 per annum. Of the two interviewers one thought she had an energetic personality, and identified a strong engineering technical orientation plus financial experience, but thought a weakness was a slight lack of focus, and that she was unsure where she wanted to end up. The other thought her personable, clear thinking, with a strong character and a desire to achieve, but a weakness was that she might get frustrated with the openness of the Enron structure. He rated her a solid candidate.

[67]Enron are highly selective of the better MBA graduates. She achieved selection.

[68]Whilst at Enron she was regularly appraised. The appraisals pick up themes which were to recur after the accident: her bright intelligence, occasional making of errors (sufficient to be noticed), problems with communication, and a tendency to be impatient with others, direct and forceful in a somewhat abrasive way, and able to put in long hours. Thus David Crews thought her “very bright” on 6th March 1998 but someone who could improve on her listening skills – adding “there are few Associates as free thinking and outspoken as Ingrid..” Robert Saltiel and Melissa Lock (3 months later):

“very quick to understand issues”.. “slight confusion over reporting/feedback roles.. means occasional slips..”; Robert Saltiel (25th January 1999) “problem solving: outstanding… communications: excellent/good. Clearly understands issues but sometimes not perceived as communicating “big picture” to less involved individuals”; “customer relations: excellent.. needs more experience to further develop effective style”

[69]Evidence admitted in writing (it being thought by the Defendant disproportionate to hear it orally, for the purpose of exploration or challenge) from Robert Saltiel and Nick Mooney was to the effect that despite these hints of criticism she was held in high regard.

[70]Her salary was increased on the 1st August 1998, and 1st March 1999. On 1st July 1999 she was promoted to manager in the weather risk management department. Her salary increased to £57,000 plus a car allowance of £650 per month. It is as a manager that the appraisals of her show a less convincing picture. The last completed appraisal was for the period to 31st December 1999, completed by Nick Mooney. The performance review was made against six rating descriptors. These ranged from the top down to the bottom as follows: Superior, Excellent, Strong, Satisfactory, Needs improvement, and “Issues”. None of the claimant’s ratings were “superior”. Some were “excellent” – as for instance, customer relations, strategic skills, and “connecting and leveraging”. However, even these were qualified. Thus under the heading “Customer Relations” is said, in relation to relationship building:

“builds strong impression on new customers, very business focussed – could develop further softer customer management skills” (Emphasis added).

In the third from the top category “Strong” came deal making, and leadership of self and others. Here too there are hints of the recurring themes: in “deal making: carrying out negotiations” is said:

“excellent with European clients – works hard to develop these skills – sometimes shows her impatience – needs to learn to relax.”

Leadership is a key component of managerial success (so Mrs Underwood for the defendants told me, and I accept). The “Strong” rating for management consisted of two components – “Leadership of herself” was regarded as “excellent”, but “Leadership of others” only “satisfactory” (fourth out of the six categories, and thus apparently below median or average). Under the heading “Motivating Others” was written:

“tendency to de-motivate” – then, in capital letters: “..MUST WORK TO RECTIFY this if to succeed in the team environment.”

As to “Visionary Thinking” there was the comment:

“She has the ability to be visionary in her thinking, but must watch the tendency to decide the answer before considering all possible solutions for the client”

. Under “Decision Making” it read (again, emphasis added): “if in familiar territory Ingrid makes good and quick decisions. Tendency to over analyse to the nth degree rather than way (sic) up probabilities”.

[71]“Teamwork” was rated just “satisfactory”. This contained comments against the various headings such as:

“Ingrid can often be abrupt with team members and work alone too much.”; “Excellent at gathering market data – doesn’t always spend the time to communicate it – but does try”; “Ingrid involves others so long as they are providing what Ingrid wants. Could spend more time developing good working relationships with others.”; “Ingrid is very quick to critique the team and adds value here – doesn’t always take criticism as well as she gives it.”

[72]Under the general heading “Ability to learn” (again rated “excellent”) and the topic heading “Assimilating – Understanding new concepts” was written:

“dependent on the subject Ingrid can be leaping five steps ahead or struggling to assimilate, but she never gives up until she has the understanding.” (Emphasis again added).

A cautionary note was added under “Connecting and Leveraging: defines New Business Opportunity” as follows: “must be careful not to make up her mind and define the customers requirements, before analysis with the customer. Remember customers buy what THEY want”.

[73]A box invites summary comments against some headings at the end of the assessment. This suggested her integrity was never questioned and added:

“OUTSTANDING” (This, too, gives me some further confidence in my assessment she has not set out to deceive the court). As to “communication” it says: “can be abrupt”

. A very high work ethic was identified as a specific area of strength, but the specific areas of development included a need to develop softer management skills and communication skills, and to understand the power of influencing others rather than demanding her requirements. The reviewer commented finally that she needed to learn to motivate others appropriately, to play the system and to “stop fighting it”.

[77]She had just submitted her resignation from Enron with a view to starting with Executip when she had the accident in respect of which she claims. Her contract with Executip secured her a little more than she had with Enron - £65,000 per year basic salary plus a bonus, discretionary in amount, up to fifty per cent. Accordingly, it was a salary package worth in the region of £65,000 to £100,000. I note that she began it with the defendant, a fellow INSEAD graduate. But he was the main mover, compared with her. The reasons for this were not explained to me, but I infer that reflected her own acceptance of the slightly lesser role, despite her ambitions more generally. This confirms my general view that she was not destined for the stellar career she had hoped for.

[78]Thus the indications prior to the accident were of someone who was capable of hard work, who was very bright, who placed an emphasis upon success, but was not always tolerant of others, not always able to communicate effectively and persuasively with them, who tended to demand what she wanted and expected, rather than to secure it by more persuasive means. She could be quick to the point of making occasional slips, and in unfamiliar territory might seem to be taking time to reach decisions.

[79]Between the folding of Executip, and the commencement of work with Vodafone, she approached a number of companies with a view to employment at a level commensurate with that which she thought her skill to be.

[80]In June 2000 she had been referred by her G.P. to a neurologist, Dr. Kennedy, complaining of difficulties concentrating, which was frustrating her. Dr. Kennedy’s registrar Dr. Harkin replied on 31st July 2000 to say that she had had intermittent headaches, felt generally tired and easily irritated, having difficulties concentrating at work, and having suffered from intermittent depression. Scanning of her brain produced no positive imagery (but this does not exclude brain damage). In August Dr. Kennedy confirmed this, and confirmed that the blood tests too were normal. She was referred to a chartered clinical psychologist, Dr. Doyle, who recorded that she experienced difficulties concentrating and occasionally comprehension problems, with no tolerance for stress, feeling easily irritated, angry or tearful and experiencing headaches every day. Dr. Doyle commented, however, that the claimant was “experiencing a normal range of cognitive and emotional problems which had been improving with time and which would be expected to continue to improve”. In a letter of 6th November 2000 Dr. Doyle confirmed that there had indeed been improvement but headaches were ongoing: no further follow up appointments were arranged. The claimant, with some justification, says she was told by the medical practitioners to whom she was referred that she would recover with time and that there was nothing significant to worry about.

[81]It is said on her behalf that the failure of Executip was on the cards before she finally left its employment, yet that she did not use the time to apply for other jobs in succession, as she would have done had she not been injured, as the comments by Drs. Harkin, Kennedy and Doyle confirm she was. Instead, she spent little or no time approaching companies for possible work until she left Executip. She then approached two “head hunters” but neither invited her back for further interview nor put her forward to prospective employers. The evidence to enable me to paint a picture of this period is somewhat hazy: her job search took some time, but this may have been because she was seeking employment at a relatively high level (as her job at Vodafone was to demonstrate). I have no direct evidence from either head hunter who spoke to her at the time. Nor is there evidence of people who were less well qualified than she was (whether on paper, or by experience) being preferred to her for posts on offer. Although the period of time between ceasing with Executip, and obtaining employment with Vodafone was around six months and therefore of significant length, it is not so substantial a period as to suggest that her efforts to obtain employment were actively being hindered by her accident. If I were prepared to make the assumption that, she was, at this stage, suffering a lack of concentration, a degree of forgetfulness, constant headaches, and some of the cognitive problems to which she has referred, I nonetheless see no evidence that had she suffered none of those problems she would necessarily have obtained employment earlier than she did. Nor do I have the evidence to suggest that she lost any significant chance of doing so which was otherwise open to her.

[79]David Anderson recruited the claimant to work for Vodafone. He did so after two interviews, offering her the post in mid May 2001 to begin at the start of June. He hired her as a manager whose work involved analysis, project management, research and transaction execution. In a witness statement he said:

“given her background, I expected her to be an excellent employee. In fact, she was adequate, not exceptional. At the time, I wondered if this was to do with language difficulties.”

[80]However, a year after he first engaged the claimant he wrote a confidential memo, in connection with salary reviews conducted after a year of employment. He did so for three employees. He was most fulsome about the claimant. He said:

“She is extremely tenacious and intellectually rigorous. She always questions and never takes anything at face value. She understands the process of managing our advisors and is gaining in both confidence and experience. She has made a determined effort to understand better the dynamics of our industry and made a major contribution to the early stages of the Payments Project. For a full picture of her performance in Japan over the last few months, you would need to talk to the team there, but my impression is that she has been doing an extremely good job. She has a background in marketing and I can see a future career moving in a number of different ways. I strongly support a move to Japan on a permanent basis.”

[81]He commented in respect of a second employee that he had “taken a little longer” (i.e. than the claimant) to settle into the role. He described that employee as “not as quick as Ingrid”. In conclusion, he recommended an increase of six percent in salary for him, but eight per cent for the claimant.

[82]When it came to preparing a witness statement in June 2004 he painted a different picture. He said “looking back, I think she genuinely found difficulty in concentrating.” (He had, however, commented that usually she gave the impression that she was on top of her work). He described how he had arranged for her to be seconded to Japan for the best part of a year to increase her experience, and added the comment that although she enjoyed her time there “I don’t think it was a great success”. This, of course, contrasts with the impression given in his memo of 30th May, just before he left Vodafone, that she was doing an extremely good job. In his witness statement he noted she had on occasions struggled to find the right words (which he put down to her being Dutch), formed the impression that she only just coped being able to do one task at a time, noticed that she had problems digesting new information and providing immediate feedback and opinion, and did not always come across in a clear and coherent manner. In his second witness statement (September 2004) he said that she was not a key member of the team but that if she had been he would have probably been unable to keep her, and described her move to Japan as being decided upon “in the hope that she will be able to demonstrate in a different environment what I hoped she might be capable of.” In the witness statement he declared her productivity, relative to the man, of whom in his memo he had said he was not as quick as she, as being low in comparison with his.

[83]Mr Grant argues that the memo needs to be placed in the context that it was intended to achieve a specific purpose, namely to secure salary increases for two managers for whom Mr Anderson felt responsible, whom he had hired personally and whom he was now leaving, after a year, to go elsewhere. It was thus not intended to double as an appraisal, in which it would be expected that positive attributes would be offset by negative ones. This submission, however, is effectively asking me to treat the memo as not being honest and accurate. Moreover, I cannot accept that Mr Anderson saw so little of the claimant (at least until February 2002 when she left for Japan) that his comments were not soundly based. However, it became plain when he gave evidence that the view he expressed in the memo represented the views that he actually had in May 2002. He knew his successor, Charles Butterworth, well. He plainly has a significant respect for Mr Butterworth. He came to hear, through him (and maybe from other sources, too) of the lack of success of the claimant which became apparent subsequently, and of the adverse comments made about her which his witness statements reflected. These were thus more a reconstruction with the help of others than direct recollection of his own.

[84]Accordingly, I conclude that the claimant was able to impress her line manager with her success and competence for a year. She was not someone whose defects were so obvious that she was bound to be “found out”. Although it must also be plain, from his change of tune, that Mr. Anderson was prepared to accept a more negative view of her talents as being more realistic than his provisional one of May 2002, it is to Mr. Anderson’s successor in post, Mr Butterworth, that one must look for a clearer understanding of why it was that she lost her job at Vodafone.

[85]Mr Anderson, and Mr Butterworth, are different personalities. I would not expect the latter to cut any leeway for any of his subordinates. His assessments are intended to be tough and accurate, even if they may be brutal. What appears to have happened is that Miss Van Wees was not as successful in Japan as Mr Anderson had thought. Helen Lock, senior HR manager wrote a note on 25th April 2003 which read in its material parts:

“Ingrid had been on assignment to Japan last year, the assignment was curtailed due to Ingrid’s working style (which is very direct). Following a review of the corporate finance team’s skill set, Charles (Butterworth) did not feel that Ingrid had a long term future in corporate finance. (He identified her development needs as: attention to detail, numeracy/management and control/working style). Charles had a meeting with Ingrid on 28th Jan 03 and gave her his feedback. He suggested that she start to look for a role elsewhere in the organisation. Ingrid agreed that her future was not in corporate finance but she wanted to remain in corporate finance for another year. Charles said that this was not possible and explained that he wanted to bring in an external hire…”

[86]Instead, therefore, of having a long term placement in Japan, she was asked to leave prematurely in about July 2002. The claimant therefore returned to Newbury. She returned to a new manager, who must have known that she had “failed” in Japan. My assessment of Mr Butterworth is that in assessing her capabilities he would have this history very much in mind.

[87]She described herself as “collapsing” after the last day at the office in Japan. She says (paragraph 40, first statement) that she had no energy and could only sit on her sofa too tired to exit her apartment or walk around. She felt she had come close to a “burn out”. Exhausted, she took an extended holiday on a Thai island, for some two weeks, followed by a further fortnight in Malaysia, travelling largely by rail, by herself. In my view, Dr Jacobson was right to describe this as “stress related fatigue”. I see a clear link between that, her intermittent depression following the difficulties in returning to work with and after Executip, and the deep depression which followed the loss of her job with Vodafone until she secured her present employment. The cause is, in my view, largely disappointment that she was unable to achieve that which she had expected to achieve – the success upon which she put such a high value. I do not think it was primarily caused by the physical side-effects of organic brain injury, nor by their direct psychological side effects.

[88]I do not know precisely what mood the claimant was in between returning to Newbury, and the conversation with Mr Butterworth in January 2003 which closed the door on any future with Vodafone. I suspect that she knew that she had failed to achieve in Japan that which was expected of her: her own statement recalls how her line manager there, Bradley Whitcomb, had first taken away three of the five projects upon which she was working from her to leave her with the two easiest ones, and then removed one of those too, before requesting her return to England. This would have been dispiriting for anyone, but especially someone who is as I judge the claimant to be.

[89]One of the difficulties in assessing evidence in this case is allowing for the effects of fluctuating depression and mood. Certainly, Mr Butterworth would not have seen the claimant at her very best given the immediate past history. Despite that, he records that she regularly worked long hours, struck him as being fairly energetic and healthy, and was able to meet deadlines effectively. But he also commented that she was not strong under pressure, at times struggled with the work especially the technical side, and at times he was concerned that she seemed to have some difficulty concentrating. She did not multi-task well.

[90]These occasional difficulties with technicalities seemed to me to echo a comment made at Enron to which I have already drawn attention. Similarly, her verbal communication skills were rated by Mr Butterworth as “OK”, sometimes feeling that she was struggling for the right words during the conversation. This, too, seems to echo the past. He commented that ultimately the standard of her performance was the reason for her dismissal. What he did not say, in his witness statement, was that it was because of difficulties in managing others as a result of her abrasive style. In cross-examination he observed that she did not have a classic corporate finance background, her corporate finance experience was relatively limited, and he had to ask whether she had the aptitude, could cope with the technical side, and “come up the curve, however it might be achieved”. His view was that she could not do so. He said, in re-examination, that she had come back from Japan principally because she had not got on well with the personnel in Japan and there had been some “issues”.

[91]During the time she worked for Vodafone, when these problems emerged, the claimant saw Dr. Marta Elian. That doctor recorded complaints of a deficit of memory, deterioration in concentration and speed of thinking, difficulty with multi-tasking and hypersomnia. In relation to her new job Dr. Elian recorded her as complaining of not being “..as good as she used to be”. Although many of the complaints were as to the period before she was employed by Vodafone, they nonetheless give an insight into the thinking of the claimant after she had been working at Vodafone for some eight months. In a subsequent report, without seeing the claimant again, Dr. Elian said (paragraph 15, report 13th February 2003) that it needed to be emphasised that because of the claimant’s superior intelligence she was aware of all details of her deficiencies which in an average person would not be recognised or considered a deficiency, therefore was more disturbed by them. In other words, the defects she complained of were not defects which would be noticeable in the average person, even if they were to the claimant. Dr. Elian’s report is not relied upon as expert evidence. I treat it, therefore, merely as evidence of the fact that complaints, albeit of the very fine nature revealed by paragraph 15 of the later report, were made whilst Miss Van Wees had no reason to think that she was failing in the eyes of her employers.

[92]After the failure in Japan, the claimant saw Professor Morris. I have already expressed the view that caution needs to be exercised in respect of his results, because the claimant’s principal language is Dutch. A second reason for caution, also expressed by Professor Beaumont, was that she might have been suffering from a degree of depression. If, as I assess, she places a significant emphasis upon success and was not accustomed to failure, I think it probable that she was relatively low in mood when she saw Professor Morris. This does not, however, obviously explain why his results demonstrated a specific defect with short-term memory. Any effect of mood would be more likely to be generalised. The problems she describes to Professor Morris were once again deficits of degree: a memory less good than it was, difficulty in concentrating upon a conversation where there was background noise and a loss of ability to multi-task, some problems with word retrieval (I note that this is expressly negated by the evidence of Charles Butterworth), some problems visualising concepts, and a need for more sleep. She also complained of continuing headaches.

[93]Of the lay witnesses, very little of the evidence clearly relates to the period of time when the claimant was working at Vodafone. Marian Geboers spoke regularly by telephone prior to the claimant beginning with Vodafone. She does give evidence of visiting her in Oxford, but her general comments about the effect of the accident upon the claimant are unspecific as to time and place. As I have already indicated, much may depend upon the precise impact of depression, and therefore the precise period to which the “snapshots” given by irregular meetings face to face, or irregular conversations between the lay witnesses and the claimant relate. However they provide some indication (particularly in the case of Andrea Lubberdink) that there was some difference between the way in which the claimant behaved in late 2001, in Thailand in July 2002, and Christmas 2002 and the way she was when uninjured.

[94]My conclusion, from all this material is:(a) the claimant was performing a job for which she had little practical experience;

(b) the job was at a higher level than which she had previously occupied, and involved management;

(c) she performed reasonably well – if she had not done so, I am quite satisfied that Vodafone would have dispensed with her services rapidly, instead of after nearly 2 years;

(d) the seeds of her departure from Vodafone were sown not by any technical difficulty that she had, nor by any obvious memory deficit, for such would have been apparent before she was seconded to Japan: and it is plain from her comment to Dr. Elian, as it is from the tenor of the reference produced by David Anderson, that the job in Japan was seen more as an opportunity than as a move to sideline her. Rather, she probably failed because her management style and approach to others needed improvement.

(e) in short, she was not a sufficiently good manager to manage at the level at which she was managing, at least over the long term.

(f) however, the “loss of edge” which the slight memory problems, concentration difficulties and some associated fatigue and headache caused her was sufficient for her to be unable to rehabilitate her career in Newbury;

(g) Mr Butterworth did not take quick steps to dispense with her services after taking over in July 2002: so failure in Japan was not the only reason for his choosing to dismiss her; indeed, I take at face value his suggestion that she could look elsewhere in Vodafone than in corporate finance, which indicates to me that she was not so poor as to be incapable, even if she had been trying to work above herself;

(h) a contributory factor to her dismissal when it happened was her “loss of edge”, caused by the accident. 95. It follows (having regard to the familiar principles set out at paragraph 61) that I have to ask whether she would have lost her employment with Vodafone in any event at or about the time she did: or whether she had either a probability, or a chance of retaining that employment had she been uninjured. 96. I am, here, not assessing the causes of what happened, which must be done on the balance of probabilities. I am looking at a hypothetical question in the light of all the available material. I think that the chances that Ingrid Van Wees would not have continued in her then current role in corporate finance were high. This is principally because of the management style which she revealed. Although Mrs Underwood, Employment Consultant, conceded (in my view rightly) that Miss Van Wees could have learned to manage better than she did, this is a process which inevitably takes some time – and gives rise in my view to a significant chance that at her salary level she would not have been retained whilst learning. Moreover, I note that the approach which caused her the problems in Japan (so it appears) was one which had, though gently, been brought to her attention on previous occasions. Nonetheless, it persisted. 97. I addition, Mr Butterworth thought her background in corporate finance a weak basis for her continuing in that particular role. 98. Accordingly, I think it more likely than not that Miss Van Wees would not have retained her then role in Vodafone for anything more than a short period longer than she did. Assessing the chance in percentage terms inevitably uses a broad brush: I assess it to be in the region of 80% (i.e. 20% likely that she would have retained that particular post) that she would almost certainly have lost the job within 6 months of the time she did. 99. Conversely, I consider that if she had not been injured there would have been a greater prospect that Miss Van Wees’s services would have been retained by Vodafone, by a sideways or downwards move as Mr. Butterworth proposed, such that she would have had no discontinuity of regular employment, though possibly at a somewhat reduced salary, and outside the corporate finance sphere. I think it highly likely that she would not have suffered the indignity of dismissal from Vodafone, and thus would have retained much of her earning capacity, and would not have suffered most of the deep depression which followed the termination of her employment with Vodafone (the bulk, though not all, of which was in my view caused by the mismatch between her expectations of personal success and her actual achievement, rather than the after-effects of the accident.) 100. I shall return to the assessment of the claimant’s employment prospects, if uninjured, below, when I explore the quantum of the award. I recognise, however, that there are here a number of uncertainties and imponderables which are not amenable to any precise answer. Rather, it calls for the best jury assessment I can make in the light of all the material, having seen the witnesses and considered what I think to be the realities of the situation.

The Second Accident

[101]In the early hours of the 1st February 2003 (probably around 3 a.m.) the claimant was driving back to Oxford from London, where she had seen friends, when her car hit the central barrier of the M40 , near Oxford, before leaving the nearside of the carriageway and rolling over. The circumstances surrounding the accident are shrouded in mystery. It was said in evidence that she had left her friends at about 22.30. If right, it is difficult to explain why it was not until 3 a.m. that the accident occurred. The claimant has no recollection of being anywhere else in the meantime. Her account is that she fell asleep at the wheel: yet it is recorded in the clinical records prepared on her admission to hospital immediately afterwards that her car “slid (perhaps on ice)”. What appears clear is that her car struck first the central and then the nearside barrier of the motorway before it turned over. She banged her head, but had no loss of consciousness. She waited in a van (which had stopped, in consequence of the accident) for police to arrive. She was discharged home from hospital after a small laceration had been cleaned. She had no nausea, no visual disturbance, no dizziness, and suffered no PTA on this occasion. Five days later her G.P. referred her to Dr Hyman, Consultant Neurologist. The GP said that she told him that since the accident (i.e. this second accident) she had felt very tired, slept more than usual and felt shaken. When, less than two weeks after the accident, Doctor Hyman the consultant saw her he noted her symptoms of tiredness, headaches and poor concentration, and added:-“I suspect her present symptoms may well be secondary to stress rather than any effect of what was an extremely trivial head injury on the second occasion.”

[102]Having reviewed an M.R.I. scan, the same Doctor wrote a week later to say that it was entirely normal and it was unlikely that there was any neurological basis for her symptoms. Having seen the report of Professor Morris, he felt that any new symptoms were not due to neurological disturbance.

[103]She apparently returned to work, but after two weeks began a medically certified absence from work, suffering generally from headaches, complaining that she was under pressure at work to move out within the firm, finding it difficult to concentrate and with variable sleep.

[104]It was not until the 7th April 2003 that she returned again to work, first part-time and thereafter full-time. After a holiday in early July she was on the 14th July 2003 asked to leave Vodafone with immediate effect, without being required to work out her notice period. She accepted a (generous) termination package which, gross, came to £109,923.50p, in respect of which a compromise agreement was (as is standard) negotiated for her by solicitors.

[105]Doctors Price and Lewis agreed in a joint statement that the second accident caused the claimant to suffer some exacerbation of her headaches for a number of weeks but that after that her symptom were the same as before. Professors Morris and Beaumont agreed that the second accident did not result in neuropsychological impairment or neuropsychiatric sequelae, although Professor Beaumont noted that it might have had a psychological impact upon Miss Van Wees. Doctor Jacobson alone thought that following the second accident the claimant would in any event probably have developed tiredness, headaches and poor concentration lasting some months and likely to lead to impaired work performance and possibly time off work. I reject his view on this, and accept that indicated by the other medical experts, and asserted by Miss Levett. Although the second accident would have shaken the claimant, and possibly required 2 weeks or so recuperation, I consider Doctor Hyman was right to say that there was no neurological basis for the symptoms. In my view, Professor Beaumont was right: there was a significant psychological element. As I see it, this was undoubtedly contributed to principally by her failure to perform to expectation at Vodafone (which as I have indicated, had itself a mixed aetiology – the lesser part being the after effects of the accident in respect of which she claims.)

[106]What is clear on the medical evidence is that the claimant developed a recurrent major depressive disorder of fluctuating severity (paragraph 27, joint statement Miss Levett, Doctor Jacobson echoed at paragraph 10 Doctors’ Price/Lewis joint statement, and paragraph 5 Professors’ Morris, Beaumont joint statement). The claimant herself described (at paragraph 58, first statement) how depression hit her following the second accident. This depression was attributable, in her view, to the triple whammy of:-(i) learning that she had problems that could not be resolved by retraining her own cognitive processes,

(ii) learning she had failed at work, and

(iii) suffering the second accident.

[107]It plainly became severe after she left Vodafone, when she sought treatment initially from Doctor Carpenter, to whom she was described by her G.P. as having had “symptoms of depression, including variable mood, irritability, poor decision making, low self esteem, un-refreshing sleep, reduced appetite, tearfulness and, rarely some mild suicidal ideation.” Dr Carpenter treated her. She reported in almost identical terms to the G.P. on the 18th December.

[108]Dr Resek, a psychiatrist, continued treatment of the claimant when she moved to London, and in March 2004 she began the course of treatment with Miss Levett which I have already referred. Miss Levett herself indicated in preliminary findings on the 19th March 2004 that the major depressive episode was:-“reactive in main part to the employment and career losses associated with the injuries sustained. Her self esteem is lowered. Her social life is reduced by her increased fatigue.”

[109]In my view, this assessment was accurate.

[110]It was during the period of treatment for this major depressive episode that many of the medico-legal examinations reported upon before me were conducted. Suffering as she did, I do not consider that she could reasonably have obtained fresh employment earlier than she did. She began work as a Senior Investment Manager for Deutsche Investitinosund Entwicklungsgesellschaft mbH (“DEG”) in Cologne, working a four day week. It should be noted that not only had she recovered sufficiently to take employment, but to be able to conduct her work in a second language, German. Since then, it is plain that she has recovered, if not entirely then almost completely, from her depressive episode.

[111]What this history therefore shows to me is:-(1) the second accident had no What this history therefore shows to me is:-(1) the second accident had no lasting effect upon the claimant’s health, and cannot be considered as causative of the losses the claimant has suffered;

(2) the depression was caused by the loss of the job at Vodafone: but, as I have found, accepting Miss Levett’s view as I do, it is associated with the after effects of the accident, and I have concluded that the loss of the job at Vodafone was contributed to by such after effects. I am satisfied that this is to an extent more than merely minimal. It is accordingly compensable in this action.

[112]I have, however, to take into account the fact that bound up with problems caused by the accident in respect of which she claims are the effects of a depression which has been triggered by her reaction (the meaning of the phrase “re-active depression”) to her loss of employment with Vodafone, in a situation in which I have considered it very likely that she would have lost the particular job she was doing, and quite likely would have left work with Vodafone – and thus substantial causes of her depression would have existed irrespective of her accident. In assessing compensation, I shall have to reflect this.

Employment Prospects if Uninjured

[113]Two employment experts gave evidence before me. I have considerable reservations about the evidence of each.

[114]Norman Burden, who was called by the claimant, had not given evidence to a court before. His claim to expertise was that he had worked in the executive recruitment industry since 1989 and has founded and directed a listed company which generates its revenue through the provision of human capital management and executive services throughout the world. He acts for employers engaged in recruiting high level employees.

[115]By contrast, Morag Underwood, who was called by the defendant, is an associate of with HJ Personnel Services who in the course of the last eight years has researched and reported with a view to providing evidence of personal injury litigation. Her background is in banking, delivering training initiatives, in the motor trade and within charities, and she has a particular interest in vocational rehabilitation. Her perspective of the labour market is thus a broader one, but less specialised than is that of Mr Burden.

[116]Mr Burden wrote his report with an excess of hyperbole, as though he were advertising the claimant rather than reporting realistically upon her prospects. Thus in paragraph 2 of his report he described Ingrid Van Wees in a series of bullet points as “a uniquely talented individual…” (He accepted in evidence that she was not so, even if highly skilled) “…who has invested many years of her life developing a successful career.” (Yet she was 33 when she had the accident, and her career, if it was to be successful, was in its infancy, and has since been unsuccessful).

[117]Further, he said:

“by the age of 33 she had already proven herself to be a highly capable and successful manager within very demanding roles.”

As the facts show, she had managed little, and received more hesitant praise for her management skills than for her earlier work

[118]The fourth bullet point was:

“she was at a stage where her earnings potential was still rising sharply.”

These fine sounding words, once analysed, are almost meaningless: it is difficult to see why anyone’s “potential” should differ much from one day to the next, since potential is by definition that which is yet to be realised and depends on innate ability, as to which there was no sign of change. If the implication is that her earnings were rising sharply, that is not clearly borne out by the facts.

[119]When pressed by Mr Featherby about these matters, Mr Burden accepted that most if not all the bullet points in his summary were matters either for the medical evidence to determine or for the court to decide, or were speculation.

[120]He reviewed career prospects and earnings potential at paragraph 9.7. With an enthusiasm demonstrative of the approach I have described, he declared himself on paper:- “completely satisfied that she would have been able to continue and progress to senior management status in (Vodafone) or another similar organisation.”

[121]He gave her prospects of reaching the status of senior manager as 99% (on the basis that she had already proven her capability to gain and be successful in that kind of position, because she had “secured and held down” (!) a managerial role in the corporate and finance department of Vodafone.)

[122]He gave her prospect of reaching director status as 75%, on the basis that she would have been promoted within Vodafone or headhunted by a competitive organisation: of reaching the level of divisional general management or similar 50%, and main board director status 5%.

[123]Less impressionistically based, however, was a section of his report which recorded empirical information relating to the earnings of post MBA students. He specifically looked at students who came from Insead. Their salaries are reported by the Financial Times, and by Insead themselves. Those with 3 years post MBA experience in 2003 were reported as earning £78,137 on average. The Insead survey showed that after 7 years the average was £116,327, rising to £134,013 for those 12 years after a MBA. There appears to be only a minimal increase with time thereafter.

[124]Mrs Underwood spent much of her report examining extracts from the records of the claimant’s career prior to her accident. From the appraisals, she picked out, and reported, most of the negative comments and few of the positive ones. Her view of providing a balanced report appeared to be that it was necessary for her, called as she was by the defendants, to ensure that the court had a balanced view of the case by highlighting those matters which were adverse to the claimant (to offset those matters which were favourable, which she left for the claimant or Mr. Burden to mention). It was far from clear to me that she understood the importance of assisting the court by giving evidence which was in itself balanced. I noted that she had not read any of the lay witness statements other than that of the claimant, and had in part misunderstood that which the claimant had said to her at interview. For instance, she said, without any proper basis for doing so, that the claimant “did not enjoy” her time at Unilever or at Core Consulting.

[125]She, too, produced statistics as to the general level of salaries and bonuses reported by MBA graduates. MBA graduates responding to the survey she quoted had a median basic salary of £62,100. The highest average salary for MBA graduates was in the consulting sector (£92,570) followed by finance (average £81,350; median £60,030).

[131]She thought the claimant’s skills appropriate to the area of risk management in which “with sufficient experience and the development of good skills a typical salary of close to £75,000 might have been possible. It is likely that a bonus would be paid on top of the basic salary” (a table attached at page 23 of her report suggests a typical salary in fact in excess of £75,000, with a bonus of around 50%: indicating a salary of £115,00 to £120,000, inclusive of bonus.)

[132]There are a number of matters upon which Mr Burden and Mrs Underwood importantly disagreed. The first was whether Miss Van Wees had, by working in production, then marketing, then consulting, then obtaining a MBA, and then working in corporate finance obtained a broad base of skills which would stand her in good stead in competitive recruitment for the highest salaried posts, as Mr Burden contended, or had demonstrated a lack of focus as to eventual career, taking too generalist an approach in an increasingly specialised world (as Mrs Underwood contended). On this issue (as I did generally) I preferred the evidence of Mr Burden, despite the reservations that I have about it. It seemed to me that he had the greater experience in practice of placing potential candidates such as Miss Van Wees into relevant employment, and of currently advising corporate clients as to their recruitment choices. Whereas a range of different experiences in different areas, without any eventual specialisation, might indicate the lack of focus which Mrs Underwood thought it did if it was apparent in someone of, say, 40 or 45, it does not seem to me be obviously damaging to a young woman of 33; and I prefer Mr. Burden’s evidence that senior employees who have started from a broad base are nowadays attractive to employers.

[133]Secondly, Mrs Underwood clearly played down the utility of a MBA in the modern market, where such qualifications are more common than they used to be and have accordingly less specialist value. Mr Burden emphasised that much would depend upon the “quality” of the MBA: and since it is generally agreed that Insead is one of the leading business schools, I prefer Mr Burden’s evidence that the claimant’s possession of such a qualification would give her a competitive advantage.

[134]Ultimately, many of the matters to which they deposed were matters for my own assessment. My conclusions as to probable career model are as follows:-a. as I have already indicated I think that the chances of the claimant retaining a managerial role in corporate finance in Vodafone were significantly less than evens;

b. I accept Mr Burden’s estimate, however, that with her qualifications and attributes the claimant had a significant chance of reaching senior management status or at least employment with a commensurate salary; however, I regard his estimate of 99% certainty as to this as being as over-enthusiastic in her favour as his hyperbolic bullet points which I have already discussed

c. I do not think that there is any realistic possibility beyond the minimal that the claimant would have progressed beyond this level. This is because I think the principal limiting factors for her were her management skills, and tendency to frustration with those junior to her, to which I have already referred.

d. It follows that I do not attach any value to the chance of the claimant progressing yet further up the career ladder.

e. the best indicator of her future performance seems to me to be by comparison with other MBA graduates of Insead. MBA graduates more generally are not a suitable comparison, because many come from much less well renowned business schools. I take into account the statement of Mr Mooney, admitted in evidence, that some 4,000 applicants with MBAs seek employment with Enron each year. Of those only 120 are accepted, the “minimum requirement being an excellent MBA from a first class business school”. This further indicates to me that a proper comparator is another Insead graduate.

[130]I do not think that the claimant’s career was so well advanced as to indicate any particular route which, from her broad base, she would ultimately have chosen. It may well not have been corporate finance (contrary to Mr Grant’s assertions) particularly after a probable knock-back in that role at Vodafone, but I see no reason to think that she would have earned any less than the average MBA graduate from Insead. There are some reasons for thinking that she might have earned a bit more, because she plainly put an emphasis upon hard work and success, which are two drivers towards higher salaries. However, this may be balanced by the fact that she was not on the Dean’s list, by the implications of the fact that the Defendant in the present case assumed a more senior role than she did in Executip, and that there is no reason to think that in that particular company she was exceptional, highly talented though she was and is. She was certainly, however, not the opposite.

[131]Attempting to place a figure upon that which she would have earned is, however, not easy in the absence in evidence of the actual FT or Insead surveys. At the conclusion of the evidence, but in advance of submissions, I invited either party to submit such evidence to me if either wished to do so. Neither took the opportunity. I am left, therefore, with the written views of Mr Burden upon which to rely. The picture he paints (at paragraph 9.5) is of the earnings of an average Insead MBA graduate rising rapidly from what in 2003 was £78,137 to £134,000 over 12 years. Thereafter the scale plateaus. I take into account the fact that in her own tables in evidence Mrs Underwood has demonstrated that the median salary is often significantly less than the average. This may be a matter of importance in this particular field, since the “high flyer” who earns a top boardroom salary will inevitably pull the salary average upward: and the concept of Miss Van Wees being average leads me not to the average salary, but to the median. I have no accurate figure as to that. Accordingly, I have concluded that I cannot base my projections as to future income on a precise figure empirically derived. Rather, I have to assess as best I can a loss of earnings figure which is informed by, but not a slave to, the data which Mr Burden produces.

[132]He attributes earnings to those of senior management status by reference to a scale the mid point of which is at £140,000 plus a bonus of 50% (mid point) making a total of £210,000 a year. For the reasons I have given, I doubt that she had the degree of certainty of reaching a senior management post he claims. Nonetheless, this scale indicates to me a ceiling beyond which I should not go in attributing earnings potentially lost. It is considerably higher than the average for MBA graduates, which I think is more informative. I think I take sufficient account of the chances of reaching a senior management position on the one hand, and the possibility that the median is below the average on the other if I allow my assessment of loss of earnings to be broadly influenced by the figure for the average MBA Insead graduate of 2003.

[133]The defendant has with considerable force invited me to take an approach similar to that accepted as proper in some circumstances by the Court of Appeal in Blamire v Cumbria Health Authority [1993] PIQR Q1. The principle is not dissented from in Chase International Express Ltd v McRae

[2003] EWCA (CIV) 505

. In Blamire, Balcombe LJ. said at (Q6) “…there are far too many imponderables here for the Judge to have being bound to take the conventional approach.. ” (By the conventional approach, he meant the multiplier/multiplicand approach).

[134]I accept the force of that argument, though in the circumstances of the present case I shall reflect it in a more calculated way than did McCullough J. at first instance in Blamire. As he did, so do I regard the “conventional” multiplier/multiplicand approach, as conventionally applied, to be inappropriate. The task at hand is assessing what earnings the claimant has lost, as best as I can, from the evidence available to me. To adopt a multiplier/multiplicand approach here requires an annual figure about which there is relative certainty, and a career pattern (or a few such patterns, as to which the chances of each happening can be assessed), including a few years, early in her career, when earnings can be calculated as rising each year as she would have progressed or been promoted, and later in her career when she would have worked less hard or achieved either or both consultant status, or alternative income such as non-executive directorships. To calculate this would need identification not just of the likely career path (as to which there are a number of different chances, each of which on a “chance” approach such as that identified in Langford v Hebran

[2001] EWCA (CIV) 361

would have to be allowed for) but accurate identification of salary rates, rates of pay progression, dates of promotion, and the likely influence of other factors which at present are only indicated rather than probable (such as the possibility of working abroad, being paid in different currencies and subject to different tax regimes). There are here too many possibilities, and too many uncertainties. I prefer, therefore, to come to a broad assessment of earnings loss. This not to pluck a figure from the air: it is to reach an informed assessment of a lump sum which properly balances the various possibilities, probabilities and chances as I see them in the light of the evidence called before me. It is informed, but not regulated by, my view that it must attribute to the claimant a sum within the range indicated by the points of reference to which I have referred. I take a figure of £125,000 per year as a broad estimation of the pre-accident likely gross annual salary (exclusive of bonus) across the claimant’s working lifetime, due allowance being made for: prospects of promotion; periods of time when the claimant may have been out of work if, for instance, she had lost her job at Vodafone; the fact that MBA graduates take time, over twelve years, to go from below £80,000 to around £130,000 on average; the availability of an international career for Miss Van Wees, given that she is Dutch and plainly fluent in German as well as anglophone; her ambition and energy on the one hand, but on the other the fact that she is not so single-mindedly devoted to a career as to turn aside from close personal relationships which might, with the demands of family, compromise career choices and determine retirement ages.

[135]I have to take account that some bonus would be added to this (it is plain that the salary figure is quoted by Mrs Underwood without bonus: see page 24 of her report compared with the last paragraph of section 4, at page 15).

[136]I must also take into account the fact that, by obtaining employment at Vodafone despite the impact of her injuries, she has demonstrated an attractiveness to would- be employers, at a relatively high level, which would only have been greater if she had been uninjured.

[137]Do I take her gender into account, to reduce this hypothetical life-time income? A submission of Mr Featherby which gave me some hesitation was based squarely on Mrs Underwood’s evidence that women are outnumbered by men in the upper echelons of management in the private sector, even more than in the public sector. She maintained that women are at a pay disadvantage. Mr Featherby invited me to extrapolate from this that I should make an adjustment for the fact she is a woman, and not a male Insead graduate. In effect, he asks me to determine her loss of income upon the basis that women will throughout her foreseeable years of employment be at a similar disadvantage to that to which they are now subject, and have been since and despite the Equal Pay Act coming into force on December 29th 1975.

[138]To embrace this argument would potentially be accepting an argument that the court should base an award for future loss of earnings upon an assumption that discrimination will continue, and that legislation counteracting discrimination in pay will be flouted. Mr. Grant suggests it may make the court complicit in discrimination. Mr Featherby argues that the task of the court is to place the claimant in the position in which she would have been had the accident not occurred. That involves placing her in a real world, rather than an ideal one.

[139]I accept that without evidence that she had an effective claim for equal pay which would increase her level of earnings, I should acknowledge that the claimant would, at present, be disadvantaged in the salaried market because she is female (and, therefore, would earn less than the average or median Insead graduate, if it is assumed that it is the male Insead graduates who receive the higher salaries currently paid). However, the court must be entitled to take note of the fact that throughout the professions greater numbers of woman are achieving high positions, and with them commensurate salaries; that equal pay claims have been prominent in the recent past, particularly in the professions and amongst high earners in the city; and that the future is one in which the gap is narrowing. It must take account of the fact that in those positions in which men and women are doing equal work, a woman may not be paid a lesser salary without her having a claim for the shortfall against her employer (the contract of every woman includes a term to that effect, inserted by the Equal Pay Act 1970, section 1). Accordingly, I think it right to reflect in the sum which I shall award the fact that the claimant has (at present) the lower salary expectations of a woman, but within a few years should earn commensurately with a man. To take any other approach would be to enshrine current differences in pay which are gender based, rather than recognise their continuing and gradual attrition.

[140]In summary, taking into account the factors I have mentioned, I begin my assessment of the lump sum for future loss of earnings by concluding that, adding bonus to the figure mentioned above, across a working lifetime beginning on the date immediately before she left the employment of Vodafone she would have received a sum of just over £160,000 gross per annum, including bonus, which would have netted down, after allowing for tax and national insurance to £100,000 per annum. This is exclusive of pension entitlements which I shall deal with separately, and subject to offset by her retained earning capacity.

[141]There is a claim for loss of earnings by way of past loss, based upon the hypothesis that the Claimant would have earned more in 2000 and 2001 than she did had she not been injured. I reject this. I do not think that it has been established before me that the Claimant’s period of searching for alternative employment after the collapse of Executip was extended beyond the range to be expected if she had been uninjured. Nor do I think that the claimant would have achieved any higher salary than she did at Vodafone had she been uninjured. There is no evidence that assures me that she would have done. The salary at Vodafone was a considerable increase on that which she had earlier earned. Comparing what would have been, with what was, I see no loss financially until the claimant ceased work with Vodafone.

[142]The Claimant left work at Vodafone just over two years before the date from which Mr Faull (an accountant instructed by the claimant) suggested that if a multiplier/multiplicand basis were appropriate, the multiplier for annual loss would be 16.84 (at appendix 34 of his report). This is to age 65. It seems to me that there must be considerable uncertainty as to the likely retirement age. Although those who, like the claimant, place a value on working may wish to go on for longer, if they can, the salary level I have chosen represents a high level job with demanding performance, year in year out. It is not difficult to see that if her employer at the time thought that she had lost her edge she would find it very difficult to continue in that work, or to get any alternative employment at a commensurate salary. I have accounted for some of the uncertainties which might affect retirement age (such as family considerations) in assessing a broad-brush average multiplicand, to inform an overall lump sum figure for loss of earnings, but not retirement age as such. I think that the uncertainties are best reflected by taking a multiplier of 16 to guide me – thus suggesting a total loss figure, before allowing for earning capacity, of £1,600,000

[143]When she ceased work with Vodafone, the claimant was paid a substantial lump sum. Mr Faull, at appendix 29, shows that in August 2003 the claimant received a net sum just over £75,000. Since it was likely that she would not have been dismissed from Vodafone if she had been uninjured, though might have suffered some reduced income for a while, credit has to be given by her for this sum, as it has for the sums she has earned with her present employers DEG.

[144]The claimant is currently working 4 days a week. It has been suggested on her behalf that even this might be too much. I reject that, for several reasons. First, I think that evidence that she suffered significantly from fatigue at the end of the day has reflected much of the depressive element of her condition, which has been lifting. Second is her behaviour and ability before me: in particular, that she did not show obvious fatigue. Third, I accept Professor Beaumont’s view that there has been, and is, a psychological component to her suffering. In addition I had the impression that the relationship with Mr Fendrich had made her much happier than she had previously been: and I suspect that with greater contentment within herself she will find that she is less troubled by the effects of any potentially recurrent depressions.

[149]I do not accept, however, that she has acted unreasonably in working 4 days a week, rather than 5. Nor do I think that she has acted unreasonably in not seeking more remunerative, more challenging employment. Accordingly, there must be offset against the losses to date the sums she has earned, but no more.

[150]Mr Faull’s appendix 27, extrapolated from 22 November 2006 to the 22nd February 2007, shows that she has earned net income of £70,535.75 from DEG. The amount would be greater if it were not for the fact that he has deducted in full amounts paid by the claimant for private health insurance. The rationale for this is that in Germany this is obligatory, since there is no direct equivalent of our NHS. Thus this payment out of income equates to the deduction made from gross salary in the U.K. in respect of National Health Insurance. However, private health insurance is also a benefit often paid by employers within the U.K., and regarded as an additional benefit. To ensure comparability of the sums, the appropriate figure to take into account seems to me to require adjustment, upward.

[151]For the purpose of calculating loss of income to date (because interest falls to be added to such an award, as it does not to future loss) I have therefore taken a figure of £75,000.00p as being the net income received from her work in Germany. Added to the “dismissal benefits” from Vodafone, which she would not have had, this amounts to £150,000.00p, net. For the purpose of informing a broad brush sum in respect of loss of earnings, I have assumed an average across the claimant’s life time of £100,000.00p per year. My assessment of loss of earnings to date is thus £100,000.00p. It will be appreciated that there can be no precise science about this figure, as there would have been if the claimant had been in a steady long-term job with a reasonably clear career in front of her, and if there were less uncertainty to take into account. I have endeavoured to reach a figure which is a lump sum assessment, indicating (so that the parties may understand my reasons for placing it where I do within the broad range of figures open to me). I now turn to apply this same approach to the future losses.

[152]For the future, I expect the claimant to work initially as she is currently doing – 4 days per week. However, it is my view that she is capable without undue difficulty of working 5 days per week. Although I do not regard it as an unreasonable failure to mitigate her loss that she should continue at 4 days per week for the time being, I would do so were this to continue for a substantial period. The minimum that she might therefore expect to receive in the future (or must be credited as able to receive) is her present income increased by a quarter. For the purposes of informing the award which I will come, I have taken the annual figure as equating to £40,000. I think, however, that a significant allowance has to be made for the chances that the claimant will improve on this level of income. I say this for six reasons. First, her obtaining and continuing in her present employment, despite it being a step down from her ambitions for herself, must have been influenced by the need to have some employment that she was capable of doing, despite the dismissal, consequent depression, and lengthy period of unemployment which she suffered. All those factors are of less significance as she develops a track record. Secondly, she has made play (rightly) of the quality of her qualification from Insead. This stands her in good stead in obtaining employment in the future. Thirdly, she was able (despite her injury, and the collapse of Executip) to obtain employment at Vodafone at the level she did – this shows that she is capable of obtaining such employment despite her injuries. Fourthly, I have regarded the principal limiting factors to her salary as being the way in which her approach to management is likely to be perceived by her employer, and those around her. It is not any innate disability. Fifthly, there are prospects of recovery from her current disabilities. These should not be overstated. Though much of the forensic debate before me concerned whether the claimant’s condition had any significant psychological element to it, it being thought that if it did so it would be likely to improve leaving the claimant effectively uninjured, I accept the evidence given to me that after the period of time which has passed, any psychological component is chronic, and much less likely to resolve as a result. I allow for some possibility, therefore, of resolution of her symptoms to a degree: but the chance is not a high one. Sixthly, I take into account the fact that the claimant herself still has entrepreneurial plans. It emerged at the trial that she had visited Shanghai with a view to establishing a company there (apparently dealing with real estate.) It came to nothing. However, this episode indicates the claimant’s own appreciation of what she might do. She is not resigned to remaining with her current employer. She remains the sort of person who will attempt to make the most of her opportunities even if (as I have suggested throughout this judgment) she has tended to over estimate her ability to succeed.

[149]In attributing a global figure to represent these several uncertainties, to be offset against the broad £1,600,000 I have already mentioned, I must also take account of the retirement age. I do not think that, in the lower level positions she is most likely to occupy the claimant will be exposed to the same vulnerabilities as if she had been an uninjured high flyer. Nor do I think that fatigue will act as a limiting factor on her continuing in work. She is plainly someone who is a keen worker. She is likely to work for longer, now, in acceptable employment than she would have done.

[150]I think that the appropriate figure to offset (which again, I shall assess, rather than calculate, as a lump sum) is £750,000 (this broadly equates to £50,000 per year, allowing a little more than a multiplier of 16 would suggest, but reducing it because of the time it is likely to take the claimant to progress from her present income).

Future Loss of Earnings: Conclusions

[151]For the reasons which I have set out above, taking into account all the factors I have mentioned, I award the sum of £850.000 in respect of the claimant’s future loss of earnings. As I have emphasised, this is a jury assessment, even though I have sought to demonstrate the broad considerations which have indicated the appropriate range for such a figure.

Pension Loss

[152]A report from Andrew Strickland relating to potential pension loss was put before me. He considered a number of scenarios, none of which I have adopted. Mr. Faull, for his part, assumes that pension entitlement would be rolled up in all of the scenarios he adopts except for that which envisages the claimant as having remained in employment with Vodafone, with no promotion. If I am satisfied that some pension loss will be sustained, its assessment is once more a matter of assessing an appropriate lump sum award.

[153]I regard it as probable that any employment which the claimant would have taken, or will now take, will be pensionable. It must, however, be an open question whether the pension scheme(s) will operate in the way in which a “defined benefit” scheme or a “money purchase” scheme would operate in the United Kingdom. The claimant’s possible job opportunities would have been, and are, international. Different jurisdictions make different provisions for pension, and the state pension in different jurisdictions has a different relationship to a company pension. Much is therefore imponderable. I am certain however that there is likely to be a loss. It will bear a relationship to the loss of income I have broadly calculated. As is the case with income, in the particular circumstances of the present claim, so, too, does pension loss fall to be calculated on a broad lump sum basis.

[154]The figure I assess is £100,000. This is inevitably broad brush, but in addition to taking account of all the factors I have just mentioned, as well as those relating to the calculation of loss of salary, I have checked the appropriateness of the figure against that which I would expect to be the case, and the figures mentioned by the rival experts. As to the former, I would expect pensions for those employed at higher salary levels to be a little more generous (as a percentage of basic salary) than those for employees at lower salary levels. The figure I assess approximates to one eighth of the net loss of income, which seems to me to be an appropriate percentage when considered in relationship to income. As to the latter, I note that the figure is in excess of the loss calculated at paragraph 8.10 of Strickland, though below his other scenarios. It is in excess of the figure calculated by Faull – but he deals with one scenario in detail only. This however satisfied me that, broadly viewed, the award I make is not out of step with the available material.

[155]It follows, therefore, that my award in respect of loss of earnings and pension is one million pounds composed of £100,000 past loss, £850,000 future loss, and £100,000 future loss of pension.

General Damages

[156]The claimant suggests £60,000 as the appropriate figure to award for pain, suffering and loss of amenity. The defendant argues that “at the very worst” the claimant hovers between JSB Guidelines 2(A)(c)(iii) and 2(A)(d). The former is “moderate brain damage” described as “cases in which concentration and memory are affected, the ability to work is reduced, where there is a small risk of epilepsy and dependence on others is very limited” : £25,000 to £52,950. The latter, “minor brain damage” guideline provides: “in these cases the injured person will have made a good recovery and will be able to take part in normal social life and return to work. There might not have been a restoration of all normal functions so there may still be persisting problems such as poor concentration and memory or dis-inhibition of mood, which may interfere with life style, leisure activities and future work prospects. At the top of this bracket there may be a small risk of epilepsy. The level of the award within the bracket may be affected by(i) the extent and severity of the initial injury:

(ii) the extent of any continuing, and possibility permanent disability:

(iii) the extent of any personality change:

(iv) depression: £9,000 to £25,000

[157]For her part, the claimant draws attention in addition to “psychiatric damage” generally where moderate damage ranges between £3,770 and £10,870, and moderate to severe damage between £10,870 and £31,060.

[160]I was referred to two suggested comparable cases by the claimant: re Palant in which an award, adjusted for RPI, of £58,839 was made to a 53 year old female by the Criminal Injuries Compensation Board. She suffered a frightening sustained attack, being punched and kicked to the head by a patient, thereafter suffering constant headaches for 2 years, a severe phobic reaction to black people (her assailant being black) which caused her distress, change of personality, sleep disturbance, nightmares, panic and phobic attacks, severe and chronic post traumatic stress disorder, and brain damage to the frontal parietal areas (observable on MRI scan) which verified the claimant’s complaints of moderate intellectual and memory impairment, problems with balance, tinnitus, and her need for long-term therapeutic support and regular respite care.

[161]The second case was Hannon v Pearce, in which the RPI adjusted figure was £48,530 for a severe closed head injury, with epilepsy, impaired memory and loss of concentration, fatigue, and some personality and behavioural changes which occurred to 25 year old daughter of a successful race horse trainer. Her future prospects had been bright. She was reduced to being able to participate for part of each day in the general care of horses, but could never succeed in a supervisory or managerial capacity.

[162]The summary facts of both cases indicate injuries of greater severity than the present. However, comparison is not easy. There was, here, a head injury of moderate severity. It resulted in a post traumatic amnesia, described above. It dislocated the claimant’s life, social, domestic, personal, and at work for the best part of 4 months to a significant extent, but also to some extent thereafter. It contributed to depressions. It has left her with permanent cognitive deficits, which are mild (relatively viewed) but which have a significant impact upon this particular claimant. She has always placed a great store upon success particularly in employment, and with some (but not total) justification sees the deficits as responsible for her never achieving the success she had placed such store by. It has caused her headaches of a nagging intensity throughout much of the time since the accident. It contributed to the loss of her job at Vodafone, which in turn caused significant depression with symptoms which, if explored, were not far removed from those of post traumatic stress disorder. All this happened to someone who was relatively young: 33. Balancing this are the fact that the deficits are not in themselves severe. She remains able to function at a level well above that of the average uninjured employee. A large component of her depression has been caused by a failure to achieve success, for which her injuries were not primarily responsible.

[163]In my view, an appropriate award falls within the range identified by the eighth edition of the JSB Guidelines at 2(A)(c)(iii), up-rated by inflation since the date to which the awards were calculated (some eight months ago). It is £42,500. I include in this sum particular recognition of the career consequences for the claimant: this is not a suitable case for a separate award by way of damages for loss of congenial employment.

Other Losses

[162]I accept the claim in the schedule of loss for £5,707 for past cognitive behaviour or therapy treatment with Miss Levett, and £109 for the purchase of a palm pilot.

[163]£474.00p is claimed for attending on medical and legal experts. This seems to me properly to be claimed as costs and not as special damage.

[164]A claim is mounted for £9,518 for 6 sets of 10 treatments of CBT in the future. Subject to causation, the cost is agreed. I have to estimate the extent to which the claimant will need such provision. In effect, the claim is for a multiplier of 6. I think that there may be a need for future help, in part arising from the after effects of the accident. However, I allow for 2 sets of 10 sessions: £3,509.

[165]Interest falls to be calculated upon the past loss. The total past lost is £105,816.00p. Interest should be payable at half the special account rate. This should not, however, be from the date of the accident (as in the Claimant’s schedule), but from the date of the claimant ceasing work with Vodafone, since for the reasons given above it was not until then that the claimant suffered any relevant loss. It is only in the case of losses which begin at or about the date of injury, and continue, that the approach of calculating interest from the date of the accident should be adopted. The sum will have to be calculated by the parties, and must allow for any interim which may have been paid.

[166]Interest on general damage will run at 2% per annum from the third anniversary of the accident: thus, 7½ % of the figure I have mentioned for pain, suffering and loss of amenity: £3,187.50p.

[167]Accordingly, I assess the claimant’s damages at £1,105,012-50p., together with the sum of interest appropriate on pre-trial losses.