“A woman and a child started to cross the zebra crossing and I stopped. A van behind me just collided into the rear of my car.”
“I could see people about to cross. They were not actually on the crossing but the Golf stopped suddenly. I immediately braked as well but hit the back of the car. I cannot remember seeing any brake lights.”
“I kept my eye on the child just to make sure that he did not run back across the road and I then heard a screech of brakes. This is the last memory I have prior to the collision and my very next memory is of feeling dazed and looking at the pavement. Whilst I have no memory of what must have been a huge collision, or of being thrown forwards, my vehicle was actually catapulted 20 feet down the road and had been rotated through 90 degrees such that I had stopped across both lanes of traffic. The garage mechanic who recovered my vehicle told me that it had been propelled 20 feet the other side of the crossing. ”
“We have no evidence to suggest that Miss Williams is malingering.”
“2.12 We agree that the totality of the symptoms Miss Williams reported would have prevented her returning to the highly demanding role of a Senior Intensive Care Unit Sister. Dr Savundra states that, for example, the need to bend over patients and bend down to change drains, to look up to change intravenous fluid solutions, the need to manage a group of nurses, the need to monitor computer screens and the effect of shift work on fatigue would have all been relevant to the symptoms resulting from vestibular pathology. 2.13 We agree that many patients respond well to optimised vestibular rehabilitation therapy. Some patients need to persevere with an exercise regime on a long term basis. Some patients do not respond well or at all ….. Some patients are capable of a return to work. In Miss Williams’ case, purely in the context of her vestibular pathology, it is more likely than not that at some stage in the future a return to some form of employment is feasible. We agree a return to her previous role as a Senior Sister in an Intensive Therapy Unit is unrealistic.”
“I believe that items 2.12 and 2.13 in the joint statement might imply that the claimant’s mild vestibular disturbance is sufficient to prevent her return to work in her previous job in intensive care. As indicated in my original report, the claimant’s balance disorder in my opinion should not prevent her from working other than working at heights and therefore she should be able to return to her previous job when considering solely the question of her mild balance disorder.”
“The surgeons agree that injuries suffered … would be a strain of the muscles and other soft tissues of the neck. There is now agreement that there was no damage to the main trunks of the Brachial Plexus.”
“We attribute the pain, as complained by Miss Williams to a chronic whiplash injury with nerve root or Brachial Plexus involvement and now that almost 6 years has elapsed since the accident Mr Price is pessimistic about any significant resolution of the symptoms with further treatment. Dr Gross in not disagreeing will draw attention to his comments about her perception of functional handicap compared to what is the reality.”
“Dr Gross has asked us to emphasise that Dr Harvey’s report was not directly sought by him. Dr Gross and Dr Harvey are professional colleagues well known to each other. This case arose as part of a general discussion at a neurological lecture on Malingering. Neither party actually named the claimant (as they could not recall her surname at that time) but realised that they were talking about the same case. Dr Harvey revealed that he had reported on the case. Dr Gross mentioned that it would be interesting to see a copy of the report.”
“In suggesting that it would be interesting to see the report, Dr Gross considered that he was simply fulfilling his duty to the court.”
“There is a substantial body of opinion in the medical literature on the subject of the association between brain injury and whiplash injury. There is usually no contact of the head with the interior of the car if the shunt is from behind and the occupant is wearing a safety belt. Miss Williams’ head would have been thrown forwards causing excessive flexion of the neck and soft tissue injury there and at the same time, the acceleration injury would have been responsible for some diffuse axonal injury.” 127. At one point Dr Gross appeared to be saying that primary trauma to the head was a prerequisite of brain injury but ultimately I was not clear whether he persisted in that suggestion. In any event, I accept the evidence that primary trauma is not a prerequisite and that the collision which occurred in this case was capable of causing the injury for which the claimant contends. 128. The presence or absence of post traumatic amnesia (PTA) is a recognised predictor of whether or not a patient sustained brain injury. PTA in excess of 24 hours would, by clinical classification (but not in layman’s terms), indicate a severe brain injury, while PTA of more than 1 hour but less than 24 would indicate moderate brain injury. All four experts Mr Price, Miss Levett, Dr Gross, and Professor Dolan took a PTA history. Their conclusions differ; Mr Price concluded that there was PTA of about 7 days although he had initially thought it might be longer. Miss Levett’s view is that the claimant suffered PTA of at least several days and possibly of at least a week. Dr Gross and Professor Dolan on the other hand found no PTA. 129. On the basis of the entries in the accident and emergency notes compiled on the claimant immediately after the accident, Mr Price conceded that there was no indication of head injury and had he been the doctor in charge at the time he would have discharged the claimant; it is only 1% or 2% of patients who would later develop problems. However, at the time of his report he identified sixteen events which the claimant could not remember and while listening to the claimant give evidence, he identified five more. Mr Price was present when Mr Platt cross-examined the claimant and in so doing Mr Platt himself took a detailed history and he was not able to unlock memories even with the advantage of the background knowledge available to him. Mr Price would have expected memories of the falling into the supermarket trolley to have been capable of being cued unless, of course, the claimant was dissembling. Mr Price regarded the consistency of PTA history to be important and persuasive in this case and found the claimant generally to have given a consistent history of relevant symptoms. He was the first medic to diagnose brain injury and was prepared to do so some three years after the accident by which time psychopathology had been excluded and the two year period following trauma in which the brain can often make a significant recovery had passed. In that two year period, doctors are reluctant to diagnose brain injury and that, according to Dr Price, explains why some doctors had used terms such as “post-concussional syndrome” and “very severe post traumatic syndrome” to describe the claimant’s condition. These terms, Dr Price concluded, were interesting descriptions used as a means of avoiding diagnosing brain injury. 130. Miss Levett was subject to criticism on two counts. Firstly, as she had been the claimant’s treating consultant and had diagnosed brain injury it was suggested that her medico-legal role was compromised and that she was, in any event, too closely professionally connected to the claimant’s solicitor. I reject those criticisms. I heard no evidence in this case which led me to suspect that Miss Levett was doing other than carefully fulfilling her duty to the court. Secondly, as Miss Levett is not medically qualified it was suggested that it was inappropriate for her to diagnose brain injury and that she had been irresponsible in doing so. Miss Levett’s lack of medical qualification is obvious but I reject that criticism in the context of this case. Miss Levett’s particular specialism in behavioural medicine qualifies her to assist other practitioners in the formulation of a diagnosis of symptoms of patients who present with suspected co-existing brain injury and possible psychopathology. Her expertise is valuable in assessing patients where there is no diagnostic data from MRI scanning and if brain injury exists it is at the more subtle end of the scale. 131. Miss Levett first saw the claimant at the end of July 2004 and first excluded psychopathology as a cause of the claimant’s problems. Thereafter, in September 2004 she took a detailed PTA history and identified a consistent pattern of islands of memory. It was her PTA history which impressed me as the most thorough. 132. Dr Gross and Professor Dolan were of the view that the claimant’s diary did not support the contention of PTA in this case and Professor Dolan would have expected retrograde amnesia measurable in hours with PTA of six or seven days whereas here the retrograde amnesia, if there was any at all, was measurable in seconds. He conceded that it was possible to have a normal MRI scan despite the presence of subtle brain injury and also that fatigue was a common occurrence after brain injury – a feature, of course, of the claimant’s holiday in Scotland a few days after the accident. 133. Neuro-psychological testing was carried out on the claimant by Professor Morris and Dr Iddon. Both agreed that such testing should not be used to exclude a diagnosis of brain injury although it can often serve as a useful adjunct to clarify a diagnosis of brain injury by reference to significant patterns on testing. The critical issue between Professor Morris and Dr Iddon was whether or not the claimant’s low processing speed score relative to her other performance measures on a full scale IQ was clinically significant. Their respective interpretations of the test results were closely linked to their assessments of the claimant and their conclusions of whether or not she suffered a brain injury. I note that both Professor Morris and Dr Iddon, whose core training is similar to that of Miss Levett, commented on a diagnosis of brain injury without criticism from Professor Dolan or Mr Platt. 134. The summary of Professor Morris’ views states that he considered “the head injury caused in the index event was sufficient to result in mild neuro-psychological dysfunction and that the effects are highly significant for Miss Williams given her pre-morbid function and occupational attainment. He considers that the tests are unlikely to detect all of her difficulties, but the deficits in processing speed and executive function point to the fact that there may be additional cognitive difficulties that are not easily picked up by neuro-psychological tests. ………. Professor Morris considers that the witness statements back up her range of reported symptoms”. 135. Dr Iddon on the other hand “considers that the range of test scores during her assessment led her to conclude that the profile of test results was not suggestive of organic brain damage, particularly since on the balance of probabilities she did not sustain a brain injury in the accident. In any event, Dr Iddon’s opinion is that she does not consider such minor weaknesses would have caused the serious consequences to Miss Williams’ life that she reports or to have followed the pattern reported in the DSS records, i.e. of becoming worse over time”. 136. Professor Morris considered that Miss Williams had suffered a brain injury in the accident and that her complaints are consistent with this view. He did not think that she has generated her symptoms or exaggerated for financial gain. He concluded that she was honest. He rejected the suggestion that she has developed a “sick role identity” or that such a simplistic characterisation is useful in this case. In the absence of other medical or psychological causes for her symptoms he concluded that she had indeed suffered brain damage. 137. Dr Iddon on the other hand concluded that “in the absence of a significant brain injury, there were a number of possibilities to account for Miss Williams’ complex array of symptoms. Amongst these possibilities she included symptom generation and exaggeration for financial gain and that real or perceived initial symptoms may have become psychosomatic over time leading to Miss Williams developing a sick role identity”. 138. Professor Dolan, in order to explain the claimant’s continuing symptoms or rather her belief that the symptoms exist puts forward a theory that the claimant has developed “an overvalued idea”
“What might then account for the range of symptoms from which she complains? There seems to be universal agreement among those who have seen her that she has not suffered from any psychiatric disorder. She has, however, developed a conviction that she has suffered a brain injury and this conviction was undoubtedly reinforced by the process of litigation. I do not believe this conviction however is tantamount to a psychiatric disorder. In psychopathology this type of conviction is often referred to as an overvalued idea, in other words an idea that is held with more than the usual level of conviction which has given rise on the balance of probability to excess introspection, anger and a sense of injustice. As I have already stated, this is reinforced by the fact that she has engaged in litigation.” 139. I do not find this an acceptable theory. Firstly, as Professor Dolan conceded, the documented cognitive and behavioural symptoms and the treatment notes over the first 8 – 9 month period after the accident were symptoms that were genuinely perceived whilst the claimant at no time held a belief that she had any brain injury. Secondly, I share Miss Levett’s difficulty in following how an overvalued idea can produce the genuine perception of the symptoms of brain injury. The issue is whether the symptoms of which the claimant complains exist. I am satisfied that they do and that her account of them is genuine. Without further summarising the lengthy evidence I heard suffice it to say that on the balance of probability I conclude that the claimant suffered PTA of several days duration and that she suffered an injury to her brain which has given rise to the cognitive dysfunction of which she complains. I accept the evidence of Mr Price that there is little chance of improvement in her cognitive disabilities. Quantum 140. I have heard no oral submissions on the quantification of damages. I have, however, the claimant’s schedule of loss and the defendant’s counter schedule together with the written submissions of each party. This documentation reflects the respective ways in which each party puts its case. Thus, the defendant’s documentation does not descend to detailed quantification or comments in those areas in which the defence contends no damages arise. General Damages 141. The claimant contends that an overall figure of£50,000 for general damages is appropriate; that figure is not broken down into its constituent parts. The defence contend for an overall figure of£16,000 made up of£6,000 (vestibular lesion),£7,500 (brain injury, on the basis that if there is any such injury, the dysfunction is minimal) and£2,500 (left cervical and brachial plexus on the basis of a brief period of increased symptoms before the claimant’s condition reverted to its pre-accident level). The defence figures do not reflect the level of injury and symptomology which I have found while the claimant’s overall figure is somewhat higher than I think appropriate. I allow£45,000 for general damages. Loss of Earnings 142. At the time of the accident the claimant would have been required to retire from the National Health Service when she reached 60 years of age but the retirement age was raised to 65 sometime shortly after the accident. In her original witness statement dated21st January 2004 the claimant stated that her pension following ill-health retirement is lower than it would have been “if I had been able to carry on in my job until the age of 60, which was my intention”