“after the accident everything changed. I always seemed to be tired and my brain just didn’t seem to function in the way it had before … I no longer seemed to be able to handle the pressure of the (teaching) job and I started to find it stressful, believing that it was only a matter of time before I was found out and sacked.” 5 Whilst accepting that the orthopaedic injuries were (at least to a significant extent) caused by the accident, the defendant denies that the accident caused or materially contributed to any of the other consequences alleged by the claimant. Although the defendant does not accuse the claimant of being dishonest or of fabricating her symptoms, or consciously exaggerating them, she is put to proof that her subjective complaints are attributable to a DAI and an associated vestibular injury caused in the accident. The defendant maintains that the claimant is not suffering from a DAI or damage to the vestibular or auditory systems. The defendant’s Counter-Schedule dated 26.01.18 puts it in this way: 5.1 It is denied that the Claimant sustained a "very severe" diffuse axonal injury ("DAI") or any other brain or neurological injury in the accident, and [denied] that she has been left with "subtle and pervasive" cognitive and behavioural deficits”. 5.2 The defendant also accepts that there are no enduring psychological consequences and does not put forward a psychological or psychiatric explanation for the Claimant’s reported enduring symptoms: “It is denied that the Claimant developed PTSD with associated agoraphobia and panic attacks and Obsessive-Compulsive Disorder as a result of the accident. She has no current neuropsychological or psychological disorders as a result of the accident, which will impact upon her future functioning, and there is no risk of deterioration as a result of the accident. Nor does she require any treatment.” 5.3 The defendant relies on the apparent absence of contemporaneous or near contemporaneous records in treating doctors’ and other records of symptoms commonly associated with brain injury. The defendant submits that it is for the claimant to prove that the accident caused the orthopaedic and organic brain injuries about which she now complains and that such injuries have caused the losses particularised in her most recent Schedule. It is not necessary for the defendant, so it is submitted, to put forward a positive case on causation or to put forward an alternative diagnosis of such enduring problems as the claimant has. On the defendant’s approach the action has a value of only a fraction of what is claimed. The medical and causation issues are foreshadowed in more detail in the defendant’s Schedule of Medical Issues. The Issues 6 The following issues arise: 6.1 What injuries did the claimant suffer as a result of the collision? Did she suffer a Diffuse Axonal Injury with associated vestibular compromise and the Post Traumatic Stress Disorder, Obsessive Compulsive Disorder and orthopaedic injuries alleged? 6.2 If she suffered organic brain and vestibular injuries, did they cause her to give up her career as a teacher? 6.3 What loss has the claimant suffered as a result of the accident? 6.4 Is the claimant a reliable and accurate historian such that a temporal link can be established on the factual evidence between the accident and such enduring symptoms as she continues to experience? 7 It is submitted that the claimant is honest and reliable. If her evidence and that of her witnesses is accepted, the diagnosis of DAI made by experts called on her behalf is more probable than not. There is no other alternative organic diagnosis and no psychological pathology. Therefore, because the defendant does not allege fraud the case turns substantially on a diagnosis made in the context of and on the strength of truthful and reliable evidence. 8 The defendant submits otherwise and relies on the decision of the House of Lords in Pickford v Imperial Chemical Industries[1998] 1 WLR 1189 . In that case a full-time secretary claimed compensation for work-induced cramp of the hands due to repetitive strain. Her medical evidence was that her hand condition was an organic disorder, whilst the defendant’s case was that it was psychogenic. The Judge was satisfied that the plaintiff was not a malingerer [1196 D & 1197 H]. He held that: “… the most that he could find on the whole of the medical evidence was that the condition of cramp of the hand due to repetitive movements (PDA4) might have an organic cause or a psychogenic cause, or a combination of both causes or one cause to begin with and the other supervening. He was disposed to hold that the respondent had a cramp of the hand, but she had failed to satisfy him that its cause was an organic one. She had also failed to satisfy him that it was caused by her typing work, as opposed to being merely associated with it.” [1196 D – E] The claim was dismissed. The Court of Appeal overturned the judgment, but it was restored on appeal to the House of Lords. Having referred to the fact that there was an acute conflict in the expert medical evidence [1196 H], Lord Hope of Craighead held at 1201 A – E: “The majority in the Court of Appeal appear to have thought that the whole matter ought to have been disposed of by looking solely at the medical evidence. On their approach it was enough that the judge was unwilling to accept Dr. Lucire's explanation that the respondent's condition was conversion hysteria. That being so, as there was no other explanation, the conclusion was in their view inevitable that this was a condition which was organic in origin. I have already observed that in my opinion they were approaching the matter from the wrong starting point. But their disposal of this issue is open to objection on more fundamental grounds. In the first place what they were doing was to invert the onus of proof. The respondent's whole case was that her cramp had an organic cause. It was essential to her success that it was proved to have been caused by repetitive movements while typing. So, according to the ordinary rule, the onus was on her to prove that the cause which she had alleged was the right one. It was open to the appellants to lead evidence in rebuttal to the effect that its cause was a psychogenic one. But they did not have to prove that it was due to a conversion hysteria. Failure to prove this alternative explanation was a factor to be taken into account in the decision as to whether the respondent had established an organic cause, but it was no more than that. It still left open the question, in the light of the wider dispute revealed by the medical evidence, whether an organic cause had been established for the cramp so that it could be said to have been due to the respondent's typing work. It was precisely because he was unable to answer this question in her favour on the medical evidence that the judge turned for such assistance as it might offer to the other evidence.” 9 The defendant accepts that the absence of an alternative diagnosis, or a positive case on causation unrelated to the accident, are important factors to be taken into account; but submits that there is a catalogue of important inconsistencies in the claimant’s presentation to medical practitioners and improbabilities in her evidence, both inherent and when compared with the documents, which means that the claim is not proved. When looked at as a whole the defendant’s case is that the claimant’s evidence is inaccurate and unreliable and as a result the overwhelming part of her claim should not succeed. This unreliability is significant in three major respects. First, it has a direct impact on whether the claimant can prove important parts of her claim, such as loss of earnings and pension. Secondly, there is an impact on whether she can prove that she still suffers from enduring accident-related symptoms, and if so what they are and what effect they have on her life. Thirdly, her reliability is at stake when it comes to considering whether the retrospective post-traumatic amnesia assessments undertaken by various clinicians are themselves reliable when it comes to proving that the claimant suffered a diffuse axonal injury. 10 The claimant relies on the following passage from Pickford (at page 1200 A-C): “There is no doubt that in most cases the question of onus ceases to be of any importance once all the evidence is out and before the court. But in this case it was not so simple. As Lord Thankerton observed in Watt v. Thomas [1947] A.C. 484, 487 the question of burden of proof as a determining factor does not arise at the end of the case except in so far as the court is ultimately unable to come to a definite conclusion on the evidence, or some part of it, and the question arises as to which party has to suffer from this. From time to time cases arise which are of that exceptional character. They include cases which depend on the assessment of complex and disputed medical evidence, where the court finds itself in difficulty in reaching a decision as to which side of the argument is the more acceptable. I think that this was such a case, and that the judge was justified in reminding himself where the onus lay as he examined the evidence”. 11 Exceptional cases include those involving complex and controversial medical evidence where the science is too uncertain to enable the court to reach a conclusion other than one based on the onus of proof, but are not limited to such cases. Neither are they limited in my judgment, as the claimant submits, to those cases where two alternative causes are put forward (e.g. organic or non-organic). The onus of proof may have an important role to play in those exceptional cases such as the present where medical opinion is based on information provided by a historian such as the claimant whose reliability and accuracy generally are in issue, such that the credibility of the claimant is inextricably entangled with medical opinion provided to the court. 12 The defendant acknowledges that there is no over-arching (or any) allegation of fraud or fabrication on the claimant’s part and accepts that none of the medical experts puts forward any positive material to the effect that the claimant is malingering or consciously exaggerating the type or the effects of the symptoms she alleges. 13 In this regard the decision of the Court of Appeal in Newman v Laver & Anr[2006] EWCA Civ 1135 is instructive. At paragraph 81 Rix LJ states: “In my judgment, there was no need of any blanket allegation of fraud, fakery or fabrication in the pleaded defence … The defence and its counter schedule of damages, together with the expert’s reports … sufficiently put in issue the defendant’s lack of acceptance that [the claimant] had suffered the injuries and sequelae of which he complained… In truth there was no wholesale attack of fabrication, no general attack on [the claimant’s] honesty … Instead, there was, as must occur at the close of many a trial, a detailed submission by reference to specific points which had arisen in the evidence as to why the judge should regard [the claimant’s] credibility as being both at the heart of his claim and as being suspect. The submission divided its fire between specific allegations of falsehood, exaggeration, and inconsistency, to be balanced … against the lack of objective verification of the symptoms relied on.” 14 The defendant’s case is that we are in very similar territory here. If anything, the range of disputes across all sections of the evidence in this case are wider than was the case in Newman. The defendant maintains that across the whole range of disputes, the case on the claimant’s reliability and accuracy has been adequately foreshadowed in the Counter-Schedule, the medical evidence and the written submissions advanced. 15 I accept that the defendant’s approach is proper and viable. Where it leads remains to be seen. The absence of an alternative positive case on causation or diagnosis is an important feature of the case and must be taken into account in the context of all the evidence. However, the reliability and accuracy of the claimant (and other witnesses) must needs be approached, I accept, in a more nuanced way than by blanket allegations of fabrication or conscious exaggeration, particularly when much depends on the claimant’s presentation as a witness (both in writing and in court) and where her accuracy and reliability is questioned in areas of the evidence other than those directly impacting on the medical issues. The issue of the claimant’s accuracy and reliability are interconnected across the evidence in this case as a whole. Furthermore, the extent of the inconsistencies and inaccuracies relied on could not have been fully or even substantially apparent before the claimant had given evidence when the full impact of her evidence in the context of other evidence and documents would have become clear. 16 In my judgment it is at least open to the defendant to submit that if medical opinion about the claimant is substantially based on her accuracy, and her accuracy is questionable, then the medical conclusion may also be questionable regardless of whether a plausible alternative cause or diagnosis is forthcoming. This case is not all about the medical evidence. I note that several other brain injury decisions at first instance have been included in the trial bundles. These are cases in which the various claimants’ expert witnesses were the same as in the present case and in each example, the claimant was (to a greater or lesser extent) successful in recovering substantial damages for brain injuries. It is not submitted on behalf of the claimant that these decisions are determinative of the outcome in this case, but rather that they are informative. The most pertinent of these is the most recent: Siegel v Pummell[2014] EWHC 4309 (Wilkie J) which shares many parallels with this case, and as it so happens, the claimant and Mr. Siegel have been friends for many years. Each of the cases in which judgments have been included necessarily turns on its own facts and those facts are applied to the medical evidence presented to the court. Accordingly, however informative they are, the assistance they provide on the outcome of other cases such as this one is limited. The judgment of Wilkie J shows that the decision in Siegel was, as one would expect, due to any number of factors including the Judge’s finding that Mr. Siegel was a consistent historian with regard to his symptoms, that he lost consciousness, that there was a rotational element in the injury mechanism caused by the impact, and that his was an accident that had caused significant damage to both vehicles and was not as minor as the defendant had suggested (it was no “mere bump”). Such considerations are all in play in this case. The Accident - Claimant’s Evidence 17 The Claimant’s evidence extended over 2½ days. She made 7 witness statements and confirmed Part 18 Replies to requests for further information and her Schedules of Loss. The claimant also made a video and pain diary (between June 2014 and February 2015). She verified the documents at the outset of her “live” evidence after which she was cross-examined. 18 About the accident itself she says: 18.1 “My last memory before the collision is looking in my rear-view mirror and seeing the approaching car coming towards me at speed… The car behind me was unable to stop and drove into the rear of my car… The force of the collision was clearly substantial …” 18.2 “Just before the point of impact I remember bracing and gripping the steering wheel with both hands, pulling myself forward s and turning my neck to the right for some reason… I remember a sort of crunching sound … I do not remember the car being propelled forward (or) being restrained by the seatbelt. My first memory after the accident is being stood outside at the back shouting at the other driver… I can only assume I was rendered unconscious for a period of time. I know that I rang my father, but I have no memory of that either. In fact, I have very patchy recollection after the accident for several days.”
“The effect (of the accident impact) on the neck would have been to cause violent extension which would have brought her neck back from flexed towards the right to extended towards the left. There would then have been a reversal of this effect. In addition, it is quite likely that she would have had an asymmetrical hold onto the steering wheel”
“any reasonably competent casualty doctor would cover the possibility of brain injury” and added that she would be worried if the claimant’s memory and orientation had not featured in the examination at A&E with a patient presenting as she did. I have no reason to think that the medical staff at Croydon University Hospital were not reasonably competent. 27 Trevor describes the claimant being in pain on the journey home from hospital and that for the rest of the evening she was not herself, being much quieter than usual and yet “quite agitated”
“Kathryn has complained of a headache ever since the accident … She told me even before starting back at work that she felt like she had no energy. She also said she felt dizzy but I could not imagine what that had been caused by”
“Initially painful and stiff: Better after 2 weeks; so went back to work at end of holidays. Still has constant dull pain at back of neck; better in mornings and worse by the end of the working day. Also aware of clicking… … Drinks 3-4 cider/vodka/wine every few weeks … likes walking, sewing – lives with husband. Does school work in the evening: sits at table/on sofa. Sits on sofa to watch TV (series) …up to 2 hours. At weekends does housework … Says mood, sleep, appetite, energy, all OK.Likes (job?) not a lot, feels under attack by the government, but does not identify other workplace or non-workplace stressors when asked specifically”
“On direct questioning she confirms no recollection of any other related… accidents, injuries or symptoms”
“Following the acute phase she describes all material symptoms continuing slowly to improve”
“°[no] headaches/dizziness/double vision. Nil Neuro signs”
“Kathryn told him about the symptoms she was experiencing at the time of the assessment”
“His account, to the best of my knowledge is both true and accurate” and she goes on to refer to Trevor and also back to an earlier witness statement. Either, Dr. O’Connor had recorded what he was told accurately, or the claimant is unjustifiably limiting her answer to information about the accident supplied by Trevor. If it is the latter, it is a sleight of hand that is unimpressive. 34 The claimant accepts she must have told Mr. Patel that she had no dizziness (although she did not think at that time it was caused by her whiplash injury and Mr. Patel was concentrating on pinched nerves) and that his record of “No headaches” was an error on his part given that she was suffering “horrendous headaches”
“I’d like to say, it is very easy with hindsight to think that I should have told [Mr Patel] everything; I could have been treated earlier”
“in good health, not on any regular medication”
“Physically she suffers from continuing neck and thumb pain, balance difficulties, and headaches. She also suffers chronic and debilitating fatigue, aggravated by mental exertion. Cognitively she suffers from a range of functional cognitive deficits including deficits of various types of memory, concentration, organisation and planning, easy distraction, decision making, multitasking, logical sequencing, reading, tracking of group conversation, self-expression and word retrieval difficulties, mental arithmetic, new learning and social judgment. Such deficits are present in situations when they cannot be accounted for by anxiety and/or low mood… In association with the above difficulties the quality of her occupational, social, interpersonal and family life had been reduced by a sense of detachment from others, embarrassment at her psychological and cognitive difficulties, and social and psychological withdrawal”. [I will refer to these as the “enduring cognitive and behavioural symptoms”]. 38 Trevor paints a similarly grim picture which he traces back to the accident; focusing particularly on the claimant’s complaints of headaches and fatigue and her increasing, apparent inability to cope with her teaching responsibilities, particularly the administrative and organisational elements from when she returned to work after Easter 2013. The claimant’s mother states that “She had her accident and everything changed”
“Gradually as time went on we noticed more symptoms …”
“Following her accident we noticed that Kathryn was a very different person”
“The neck and the headache very much went together…” (and he refers to the pain diary kept by the claimant). 40 The pain diary (summer 2014 onwards, after Mr. Patel’s involvement) describes continuing symptoms of neck, shoulder and head pain and it is not surprising that this appears to be visibly getting the claimant down. In summary, I accept Dr. Savundra’s (an audio-vestibular expert) analysis of the video pain diary. It is unsurprisingly mostly focused on pain and there is no indication of audio-vestibular symptomology reflected in it. 41 Dr. Allder does not mention migraine and, further, the claimant reported to Dr. Grace (neuropsychiatrist) in September 2017 that she had not suffered from migraine, which is more than a strange curiosity given the focus on migraine in the report of Dr. Savundra only 6 months earlier. 42 I find that the claimant sustained a whiplash-type injury as a result of the accident that caused severe, acute neck pain with associated headaches and weariness in the months immediately following. I will return to the details of this, and the other orthopaedic injuries which I am satisfied were caused by the accident in due course, but it is hardly surprising that in the period following the accident she was less vivacious, energetic and outgoing than her family was accustomed to. 43 For reasons that I give below and discuss further in the context of the expert medical evidence, I am not satisfied on the balance of probabilities that the accident caused an organic brain injury with the cognitive and behavioural, and audio-vestibular symptoms that have been the central controversy in this action (whether attributable to DAI, related audio-vestibular pathway problems or otherwise). This conclusion arises from the unsatisfactory nature of the claimant’s evidence as a whole, its inconsistency with medical records and its internal inconsistency, together with the absence of any clear timeline in the contemporaneous or near contemporaneous medical information. 44 The claimant’s evidence and that of her husband, about what she reported and what happened at the relevant medical appointments up to February 2014, is so riddled with internal inconsistencies and is so lacking in coherence when compared with the documents that no reliance can safely be placed on it. I have reminded myself that consistency and coherence are not the same thing as uniformity or unanimity and that a few infelicitous lapses of recollection in the context of repeated history-giving are to be reasonably expected, as might be incidental errors in the transcribing of information into notes, records and reports. However, the claimant’s narrative overall is so incoherent in my judgment as to defy explanation on these grounds. The reliability of the claimant’s reporting of the constellation of her cognitive and behavioural symptoms allegedly having a temporal link with and thus reported as being caused by the accident is open to serious doubt. 45 I do not accept that the OH doctor, the medico-legal doctor and the physiotherapist involved up to February 2014 have all missed or neglected almost every aspect of the alleged neurological and vestibular consequences, or even the possibility of such consequences, which the claimant now complains were on a continuing trajectory since the accident. 46 The records of the OH doctor, the medico-legal doctor and the physiotherapist at certain points specifically note the absence of symptoms about which the claimant has subsequently complained and attributes to the accident. It is unlikely that the notes of absence of symptoms have been invented or represent errors on the part of all of these medical practitioners. 47 I reject the claimant’s suggestion that in some respects the OH record has been made up. The claimant’s evidence about what she or Trevor told these practitioners and what they recorded, is in my judgment, ragged and internally inconsistent. Both accepted that they knew they had been sent to see Dr. O’Connor to obtain a report on their injuries with a view to legal action. There is no good reason why a full description should not have been supplied and I find that it was and is reasonably accurately reflected in the records. 48 The positive conclusions regarding the absence of certain symptoms in Dr. Allder’s report (e.g. no vertigo) supports the conclusion that a temporal connection with the accident is lacking in the case of major symptoms. I do not accept that symptoms such as paranoid anxiety, flashbacks, migraine, vertigo and light sensitivity would all have been omitted from reporting to all medical practitioners for the entirety of the first year after the accident had these symptoms manifested themselves at any time likely to be linked with the collision. I do not accept that “atrocious” headaches and “big time” dizziness could have been overlooked by medical practitioners or that the claimant was limiting herself to reporting what she considered to be within the specialisms of the practitioners she saw. 49 I do not accept that in circumstances where the claimant says she was experiencing severe and chronic, debilitating, potentially career-ending cognitive and behavioural symptoms she would have decided not to raise them even to a physiotherapist (Mr. Patel) or an “osteopath” (Dr. O’Connor) or at her OH appointment. I find this inherently improbable. She was a strong, professional woman quite capable of recognising (had it been the case) that there was a connection or at least a possible connection of some sort between her cognitive and behavioural symptoms and the accident. She must have had a layman’s appreciation of this possibility from her friendship with Mr. Siegel and her involvement as a witness in his case. 50 The factual evidence of family, friends and colleagues is too non-specific, subjective and, at least in part, reliant on the claimant’s self-reporting, to supply a timeline anything like sufficient to overcome the absence of any contemporaneous medical information supporting a link between the accident and the enduring symptoms alleged. 51 I reject the notion in this case that as a high-functioning, highly intelligent woman the claimant might simply have been “pushing through” her severe and chronic non-orthopaedic symptoms due to lack of insight, fear of the stigma associated with brain injury and the hope that it would all somehow go away. I also reject the idea that the confused, chaotic and internally inconsistent evidence she gave about what happened at the 2013-2014 medical appointments and what she remembers saying or not saying at these appointments is only a reflection of the fact that she had indeed suffered a brain injury as a result of the accident. The claimant cannot have been concerned about the stigma of a brain injury she did not know she had, and given that dizziness (whether associated with balance problems or not), chronic fatigue and headaches could reasonably be associated with a whiplash-type injury by any layperson, there would have been no call for reticence about them at any medical appointment. In any event I cannot accept that medical practitioners would independently make so many positive mistakes (e.g. no dizziness; mood and energy “OK”), and this fits well with Trevor’s memory that the claimant’s balance problems had deteriorated since she became pregnant (given this comes from a statement in April 2016, I infer he means pregnant with Henry). This is indicative of an unexpectedly worsening condition. 52 When looked at in the context of the entirety of the other evidence, the possibility that it is an accident-related brain injury that has caused the claimant to be confused, inconsistent, and to forget to mention critical aspects of her injuries, which presents her unfairly as an unreliable historian, can safely be discounted. 53 Before I turn to the expert medical evidence I will deal with other aspects of the claimant’s case that have caused me to doubt the reliability and accuracy of her evidence and show why I cannot accept that the claimant or her husband are reliable or accurate in the descriptions they give regarding the onset and trajectory of the critical non-orthopaedic symptoms they describe, or indeed, much else. Change of Career 54 The following chronology is not controversial and provides a general background. 54.1 Following a long-term relationship with Trevor Little, the couple married in October 2012. 54.2 This was shortly after the claimant changed schools, leaving Camden to join the staff at Selsdon Primary School. 54.3 She and her husband went on a delayed “honeymoon” to Alaska in July 2013. 54.4 The Mug Tree Limited (her tea room business vehicle) was incorporated on7 October 2013 , of which after6 November 2013 she was the sole director. 54.5 She resigned her teaching post in May 2014 (effective at the end of that summer term). 54.6 In June 2014 she withdrew from a proposal to take possession of commercial premises in Crowborough, having been in contact with property agents since at least November 2013. 54.7 The claimant and Trevor moved from Croydon to East Sussex on7 July 2014 . 54.8 She took possession of tea room premises in November 2014 in East Grinstead. 54.9 On13 December 2014 she opened the tea room in East Grinstead (The Mug Tree). 54.10 After three unfortunate early miscarriages between October 2013 and March 2014, the claimant gave birth to a son, Henry, on7 May 2016 . 55 Trevor describes the claimant as headstrong and very independent. I accept that assessment. At the time of the accident the claimant was a primary school teacher employed at the Selsdon Primary School where she had been since the autumn term of 2012, having moved from Camden Primary School. She had a Master’s degree in education (obtained with merit in March 2013) but otherwise, for one reason or another, her academic qualifications were undistinguished. She considered herself a committed and ambitious teacher; a high-flyer, and this view was shared by several others, although I have concluded that nobody had as high opinion of the claimant as she did herself. She describes her teaching career as “glittering” and “flawless”
“suddenly I found everything difficult by early 2014 (between January and March) and could not catch up”
“I hit a wall. I lost my engine; the motor”
“I do grieve for the person that I once was and the career that I had but Ms. Levett has helped me to come to terms with the new me…”
“I could see she was pushing herself through barriers of fatigue”. 61 I do not accept the accuracy of the claimant’s evidence about the circumstances leading to her career change or the reasons she has given for it. To put it mildly, her witness statements gloss over the detail of the change and how, as well as why, it came about. Her statements are, frankly, perfunctory about this. The change could not have happened and did not happen “overnight”. 62 It cannot be said that her version of her career choice has been moderated over time. As recently as18 December 2017 in the Care Report Ms. Kirby reports the claimant’s position in these words: “After finishing teaching [the claimant] and her husband decided to open a tea shop…”
“I noticed that she found it difficult to deal with loud and excessive noise and would retreat when this got too much for her,”
“It got harder and harder with all the government changes and the pressures. I reached the end of where I could go without going for promotion but that wasn’t something I wanted to do. I didn’t want to give up more of my life and I felt the time was right to do this”
“[The claimant] no longer wishes to remain in a highly pressurised career … Her … career had reached a plateau”
“What do you plan to do if your business fails?” to which she answers in the document: “I will always have the option of returning to teaching…” but explains in evidence “I think it means that I always intended to return to go back to teaching with a strong team under me”
“I was very surprised when I heard she was setting up the tea rooms. I thought baking cakes and running a tea room would be something (the claimant) might enjoy doing in the future, but it was not a project that I thought she would take on at this stage of her life.”
“None of the other witnesses demonstrated the poverty of mental stamina that [the claimant] exhibited in the witness box”
“We did not really talk about the similarities in the cases”. “I did not think of it again to be honest,” she said in the context of her own symptoms as against those she had described in Mr. Siegel. The penny, she said, never dropped, even in November 2014 when she gave evidence at the Siegel trial. She was blaming her own difficulties on a stubborn whiplash injury. Mr. Siegel never pointed out to her or Trevor any similarities and never suggested that the claimant should seek more than orthopaedic medical advice about them. So, the claimant says, she was not at any advantage in being able to make a connection between her symptoms the accident on29 March 2013 . 79 Whatever one might make of this evidence it sits uncomfortably with the answers to Part 18 Questions provided by the claimant on17 November 2017 in which quite the opposite impression is created. The answers suggest that there had been conversations about their shared symptoms and that it was indeed Mr. Siegel who recommended the claimant instruct a specialist solicitor. If this is supposed to be the correct version of their discussions and it is intended to convey the impression that the penny only dropped 18 months or thereabouts after the claimant’s March 2013 accident, I reject it as improbable. 80 Rear-end collisions are not uncommon. DAI may be controversial, particularly in a litigation context, as Mr. Grant puts it. The emergence of two such cases involving friends may be no more than an example of DAI being more recognised now, where it would previously have been overlooked. Medical knowledge has advanced. Looked at in this way the emergence of two similar DAI cases involving friends involved in separate rear-end collisions may not be all that significant. What, in my judgment, is significant, is that neither the claimant nor her husband (save for one passing reference to a ‘phone call in a witness statement) volunteered any background information about the Siegel case in the several witness statements prepared for the main action in this case. I find it inherently implausible that there should have been no discussion between friends and their families about the similarity of the cases or the overlapping clusters of symptoms in each case. I find it even more implausible that this overlap did not cause either the claimant or her husband to consider a link between the claimant’s accident and her symptoms as it had been in Mr. Siegel’s case. Had there been a close temporal connection between the March 2013 accident and claimant’s continuing non-orthopaedic symptoms there would have been discussions and possible links drawn, and the penny would have dropped long before the claimant finished her evidence in the Siegel case on14 November 2014 . This is particularly so given that the claimant’s pain diary was underway and had been since June 2014 on the recommendation of the physiotherapist, Mr. Patel, in circumstances where treatment had been of limited benefit. The Answers to the Part 18 Request is a more realistic version of likely events, but had to be pressed out of the claimant in that way, and is not consistent with the thrust of this strand of the claimant’s oral evidence. Both the claimant’s evidence and Trevor’s lacked transparency and candour on this aspect of the case, and I considered them to be evasive about the real levels of contact and discussion with Mr. Siegel. The claimant’s medical case 81 I will come to DAI with associated neural pathway, audio-vestibular complications in due course. However, one of the exclusionary, diagnostic tools used to reach a diagnosis of DAI is an assessment of Post Traumatic Amnesia (“PTA”). In the absence of many other high-risk factors associated with the accident, PTA assessment has proved to be critical. In its final manifestation, the claimant’s case is that she suffered PTA for between 2 and 3 weeks after the accident followed by a period of accelerating forgetting leaving the claimant with “islands” of memory once she began to emerge from the dense period of PTA. What is problematical about the claimant’s description of the period of prolonged, dense PTA resolving to accelerating forgetting, is that it appears to have gone unnoticed by her husband (whom she was with constantly), her parents (whom she saw frequently but intermittently) or anyone else, and unreported. That is not to say friends and family noticed no symptoms at all but the symptoms that were noticed were consistent with other organic causes (e.g. whiplash). 82 Mr. Grant in his Closing Submission quotes at length from Professor Morris whose conclusion is put in helpful summary form and encapsulates the claimant’s case: “In summary, on balance, she has brain injury caused by her accident and the mechanism for this is likely to be diffuse axonal injury, which affects the type of neurocognitive systems that are compromised in her case. This injury has led to cognitive and behaviour deficits that are supported by her cluster of symptom presentation in everyday life and the neuropsychological test results. Whilst the level of brain damage is technically severe, the symptoms can be classified as mild, but it should be stressed that mild symptoms can produce very disabling effects on a person, also in the context of high intelligence and occupational and intellectual expectations. Her particular neuropsychological difficulties have been very disabling in terms of dealing with the demands of teaching, in particular the degree of use of memory, multi-tasking and nuanced decision making required, as well as the degree of stamina and energy required. It seems that Kathryn Hibberd-Little judged correctly that she could no longer function in her role as teacher, having made substantial effort to continue. In my view she had incomplete insight into her difficulties and the effects on her when she made decisions about life changes and this has led to her making perhaps the wrong decision concerning setting up a coffee shop business, something she previously would have been very capable of managing. Loss of insight and judgement are features related to brain damage and on balance she may not have been making aware decisions when she decided to change careers.” 83 In support of her lack of awareness, insight and poor decision-making the claimant relies in part on the investment made in the pet shop next door to The Mug Tree in 2016. Her father describes this as “a bit of an impulse purchase not fully or properly thought through”
‘(DAI) is a “stealth” pathology of traumatic brain injury (TBI). Although found throughout the white matter, it comprises primarily microscopic damage, rendering it almost invisible to current imaging techniques. Yet, it is one of the most common and important pathologic features of TBI. It seems ironic that the size and organization of the human brain that allow us to design and drive automobiles are also our greatest liability of producing DAI in the event of a crash. Under the physical forces such as shear that commonly induce TBI, the human brain can literally pull itself apart. In particular, axons in the white matter appear poorly prepared to withstand damage from rapid mechanical deformation of the brain during trauma … The principal mechanical force associated with the induction of DAI is rotational acceleration of the brain resulting from unrestricted head movement in the instant after injury. This inertial loading to the brain induces dynamic shear, tensile, and compressive strains within the tissue leading to dynamic tissue deformation … For the development of DAI, the size of the human brain plays an important role because of the substantial mass effects during injury that result in high strains between regions of tissue. Under normal daily activities brain tissue is compliant and ductile to stretch and easily recovers its original geometry. In contrast, under severe circumstances, when the strain is rapidly applied, such as during an automobile crash, the brain tissue acts far stiffer, essentially becoming more brittle. Thus, rapid uniaxial stretch or “tensile elongation” of axons is thought to result in damage of the axonal cytoskeleton. This classic viscoelastic response to rapid deformation prompts a classification of dynamic injuries, in which the applied forces occur in less than 50 milliseconds. Accordingly, axonal injury is a dependent on both the magnitude of strain and rate of strain during brain trauma.’ 91 The authors also observed: ‘However, in survivors, DAI is virtually invisible to conventional brain imaging techniques, and is only hinted at if it is accompanied by macroscopic changes, such as white matter tears and parenchymal haemorrhage found in severe cases. The predominant pathology of DAI—microscopic axonal swellings—has proven extremely difficult to illuminate with non-invasive methods despite its extensive nature. Accordingly, patients and animal models with little macroscopic injury after diffuse brain injury typically have normal appearing images of the brain. This has led many to believe that axonal pathology is substantially underdiagnosed. Clinically, DAI is often a “diagnosis of exclusion” based on the inability of conventional imaging techniques to detect brain pathology despite overt symptoms, such as prolonged unconsciousness or cognitive dysfunction after brain trauma (Figure 3). Because of this diagnostic deficiency, the relative role of DAI in mild-to-moderate brain injury remains unclear.’ 92 In an earlier 2000 paper by the same authors they note: ‘The forces required to cause the tissue deformation inducing DAI are often misunderstood. A common cause of confusion is the types of forces required to induce axonal injury because DAI has been observed in cases of falls and assaults, as well as in victims of motor vehicle accidents. The contact forces that are produced when the head is struck by or strikes a hard object often produces focal effects alone (e.g., isolated focal contusion). However, in some circumstances, these contact loads may also rapidly accelerate and/or decelerate the brain, thereby inducing inertial forces throughout the brain. Alternatively, inertial forces such as those produced by rotational acceleration of the head during automobile crashes often culminate in the contact force of the head’s striking the interior of the automobile. Thus, although the formation of DAI is produced by inertial forces, contact forces often cause the levels of acceleration necessary to produce DAI.’ 93 Subject to some disagreement as to whether DAI is a “stealth” pathology and whether more modern and sophisticated imaging techniques might be better placed to identify DAI than was the case in 2000 and 2003, the above introduction is not in dispute. DAI is not on trial in this action. Previous cases in the last decade or so illustrate that it is an established diagnosis in appropriate cases. The issue is whether the claimant has proved that she has it. In order to do so it is important that she is a consistent and accurate historian; that the evidence draws a clear temporal link between the accident and the onset of her symptoms and that those symptoms are consistent with DAI. Assuming the claimant (and Trevor, her husband) to be accurate and reliable and a temporal link is established, the absence of an alternative diagnosis is an important consideration, but not conclusive. I am not satisfied that the claimant is an accurate historian, neither am I satisfied that a reasonably clear temporal link between accident and enduring symptoms is established, but some of the enduring symptoms (assuming the claimant is accurate about those) are consistent with DAI. It remains necessary to look at the expert medical evidence because that throws a further shadow over the claimant’s accuracy and the timeline. However plausible the medical hypothesis that the claimant is suffering a DAI, this plausibility is undermined if the claimant’s case is based on inaccurate factual evidence. Imaging 94 There are no images in the present case and so it is not surprising that imaging does not feature in the neurologists’
“We agreed that without specific high-risk factors such as side impact, significant rotational forces, or significant contact injuries, when a healthy individual is considered, low speed impacts are very unlikely to cause diffuse axonal injury.”
“it can happen”, I came to the conclusion that Dr. Allder focused too much on theoretical plausibility and not enough on the kind of coherence in the overall presentation of a particular patient (the claimant) he agrees is essential. 102 Dr. Heaney was prepared to recognise the plausibility of alternative views to his own and to that extent I found him to be the more objective. He was cross-examined at length on many academic publications and demonstrated a full understanding of their implications. He was more realistic than Dr. Allder, I concluded, in noting their limited scope. He was properly sympathetic to the claimant’s perceived predicament and presented his conclusions in a measured and considered fashion. He accepted that a diagnosis of a DAI was plausible (in the sense that it “could not be eliminated”) but took all the surrounding features of the case into account in concluding it was not probable. I accept Dr. Heaney’s conclusions. In particular I derive and accept the following from his evidence. 102.1 When assessing PTA retrospectively, the consistency of the history is important. Dr. Allder does not disagree. Dr. Savundra also said the history given by the patient was important (but thought that consistency could be compromised in someone with a brain injury). 102.2 Variations or lack of consistency in a history would cause concern that a patient’s problems were not PTA or a DAI, but something else. Dr Allder agreed that inconsistencies and contradictions were relevant to the overall coherence of a patient’s presentation, and he accepted that overall coherence was important. 102.3 There was a lack of consistency or coherence between the claimant’s reporting of symptoms in the early stages and her later rPTA assessments, including that undertaken by Gillian Levett. 102.4 He concludes: “there is no contemporaneous evidence of PTA”
“the retrospective assessment of post-traumatic amnesia has reasonable reliability with a correlation coefficient of 0.79 and with 79% of patients being allocated to the same grade of severity by both assessors. This applied to all levels of severity and at various time points after injury … however … a significant minority of patients can be misclassified, with 2% being allocated to widely differing categories of severity by two different assessors. As would be expected, table 2 indicates that measurement was more reliable for longer durations of post-traumatic amnesia and when time intervals between assessments were shorter … The findings highlight some of the risks associated with relying solely on post-traumatic amnesia as a measure of severity in individual patients and in using it to define rigid taxonomies of severity. Certainly, post-traumatic amnesia should be used as a major factor when considering the severity of a patient's head injury, but it should not necessarily be the sole determining factor… “In conclusion, measuring post-traumatic amnesia by retrospective questioning had a good reliability when the explicit method described in this study was used. The Rivermead post-traumatic amnesia protocol may therefore be a useful way of measuring the duration of post-traumatic amnesia in clinical practice. The protocol standardises the procedure of assessment that is associated with a 21% misclassification rate. In only 2% of cases however, is this category change of unequivocal clinical significance (a change of over more than one category). This is probably as good as can be achieved in routine clinical practice”. 105 Miss Levett observed in her evidence that conducting a rPTA assessment: “is difficult so has to be done carefully, but validity correlates highly with anything done contemporaneously 0.87 correlation”
“Although the length of post traumatic amnesia [has been described 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 poor master in a compensation claim. I do not think there is any inherent magic … to the process of assessing the length of post traumatic amnesia … The task is a relatively simple one: identifying what memories an individual actually has following an accident, until the time of return of ‘normal’ memory”. 107 I agree with these sentiments. PTA assessment is only one tool in the diagnostic tool box and its retrospective assessment need not be over-complicated by high-sounding descriptions such as “structured functional analysis”
“[The] accident happened after lunch on the5 November 2013 ”
“Information was subsequently updated, feedback gathered and opinion reviewed during regular weekly treatment sessions starting in September 2015”. 118 This highlights what I consider to be another serious problem: the troublesome overlap between Ms. Levett’s function as an expert witness and that as a treating specialist. In all there were about 8 hours of Assessment and 22 of treatment (though more was charged for due to the claimant cancelling some appointments). The treatment was concluded several months before the Report of 9 July was written. I can only infer from this that Ms. Levett obtained relevant information and feedback from the treatment sessions in addition to her August 2015 assessment sessions, but it is not possible to work out with any precision what information derived from treatment has informed the expert opinion Ms. Levett has provided to the court. I cannot dispel a nagging concern that in adopting a dual function, Ms. Levett has allowed herself too readily to accept at face value information provided by an unreliable historian (the claimant). I was surprised to learn that it was not routine for rPTA assessments to be recorded in 2015-2016. Dr. Allder is trialling such a process now. The transcripts of recordings of medical expert appointments that form part of the evidence in this case were taken by the claimant on her smart ‘phone. There is no recording of any part of the Levett assessments. Perhaps had recordings existed, some of my concerns about Ms. Levett’s objectivity would have been allayed. How much of her rPTA assessment was the result of leading or suggestive questions is impossible to know. I was also satisfied that Ms. Levett’s evidence to the effect that she “would have known” when the claimant was referred to her that she had been a witness in the Siegel case and that “I think Mr. Siegel told me he was concerned about someone he knew ‘had it’ [DAI] verged on the evasive. Whether this was designed to protect the claimant from possible adverse inferences or to put distance between the Siegel case and this one, I can’t say; but her evidence on this was unsatisfactory and I find, lacked candour. 119 Dr. Savundra (audio-vestibular specialist) was asked about dual roles as expert and treating specialist. He said: “I do not treat as an expert. Being an expert rules me out as a treating physician. It can be very complex to do both and it is not an acceptable position to be in”
“My first memory after the accident is being stood outside the car at the back, shouting at the other driver that it was only a day old”
“I know that I rang my father, but I have no memory of that either.”
“Cognitive problems Began to show when returned to school Sept 2013 w new Head”
“Her difficulties became more debilitating when she returned to school in September 2013 for the winter term. … The additional strain aggravated the problems she had been experiencing since the index event.”
“[the claimant] reports her vision has deteriorated and she struggles to see the television”
“She reports pain … down the front of her shins if she has to walk very fast”
“[the claimant] does not have any problems with her upper limbs …” so the apparently serious problem with her left thumb (see Mr. Beavis the orthopaedic expert’s Report) is no longer an issue. 124 At the end of her summary of the cluster of the claimant’s symptoms Ms. Levett says (after the psychopathology had been treated out): “Mechanism of injury, clinical history, and presence of brief retrograde amnesia and of post traumatic amnesia of over two weeks and possibly over one month, indicates that she has suffered at least a very severe head injury, with associated cerebral injury”
“any reasonably competent casualty doctor would cover the possibility of brain injury” and she would be worried if memory and orientation had not featured in the examination at A&E. 127 In another important respect I found the evidence of Dr. Grace to be congruent with that of Dr. Heaney namely, that in her considerable experience she had “never” encountered a patient with between 2 and 4 weeks PTA without the patient displaying signs of disorientation as to time and place, and being discernibly disorganised and incomprehensible to others. Whilst I accept that staff at the A&E department at Croydon hospital would not, and could not, have conducted the sort of assessment undertaken by the neurologists and Ms. Levett, I accept Dr. Grace’s opinion that it is unlikely that, with a patient in head blocks, some basic assessment of the claimant’s orientation would not have occurred (with the measurement of the GCS, however crude a tool that may be). The absence of any neurological concerns on the A&E record, therefore, strikes me as important. 128 Even assuming that neurological signs were missed at A&E due to the focus on the neck rather than the head, or for some reason neurological symptoms were not presenting, the evidence about the claimant’s disorientation and/or chaotic behaviour in the period of dense PTA in the weeks after the accident can only be characterised as feeble. This probably explains why it was not the subject of any challenge. I take the following examples from the Claimant’s Closing Submissions which reflect the high-point of the case on this issue. Trevor says that on the evening after the accident the claimant was “not herself at all. She was much more quiet than usual and kept repeating that she was in pain and that she did not know how the accident could have happened. I was worried about her at the time because she was clearly not right and was acting out of character…She was also quite agitated all evening”
“I asked her some questions about the accident. Kathryn was quiet and not very communicative, which was out of character for her”
“I find she has difficulty multitasking now,” not only because in the absence of concrete examples the statement is close to meaningless, but also because it is contradicted by the evidence suggesting that the claimant was teaching at school whilst at the same time taking significant steps to set up the tea room’s business structure. No witness has given an example of a panic attack (as distinct from examples of irritability and “snappy” behaviour). The evidence about alcohol intolerance is at best unclear. The claimant maintains she has developed an intolerance and Trevor notes that her consumption is reduced since the accident because it has more effect, but in answering Dr. Heaney’s questions the claimant implied that she did not consume alcohol very much anyway. PTSD and OCD 132 It does not necessarily follow from the reservations I have about Ms. Levett’s diagnosis of brain injury that her opinion about PTSD and OCD and her treatment work with the claimant is open to doubt. Unfortunately, both depend largely on the claimant’s self-reporting of symptoms. When it comes to Ms. Levett’s identification PTSD and OCD measured against recognised criteria I find that I cannot safely rely on her opinion. Dr. Grace was not prepared to accept that the claimant’s symptoms as identified by Ms. Levett met the relevant criteria for PTSD or OCD (but was prepared to accept she displayed some “obsessive traits”) and was, accordingly, not of the opinion that the claimant had either condition (even though DSM-IV had been supplanted by DSM-V and the wrong classification had been used). Dr. Grace’s opinion was mostly limited to the comparison of symptoms against the relevant criteria in the context of whether the claimant passed the gateway test for the application of the label PTSD. “I can say with confidence she has not sustained a brain injury, OCD or PTSD. I can’t go any further”
“I put memory on a par with processing speed. Memory is as sensitive in relation to brain damage, and is the most commonly found cognitive difficulty. But if talking about different patients, there are no consistent patterns between patients; one might show impairment on one but not the other. Speed of processing can be affected by DAIbut so can memory. Memory relies on the connectivity and communication of information which can be affected by DAI but you get different results in different brain structures. I am not surprised that lower memory function is present but processing speed is preserved”. 139.3 On the frontal lobe paradox he said: “those with higher intelligence appear to perform normally on the tests because the tests have to be consistently psychometrically reliable and may not be sensitive for intelligent people”
“I do not accept that there is compelling evidence of personality or behaviour changes after the accident (from the factual witness statements). I share that conclusion. “[T]here is some evidence in the witness statements but it is not strong”
“I did suffer big time from dizziness … not really (a problem) now”
“…before I got pregnant I think … maybe a year, a year and a half after the accident. I mean I still do get it sometimes …”
“In order to establish the aetiology of any audio-vestibular pathology and to determine whether it is the result of an accident, it is important to establish whether or not the symptoms are mentioned in the contemporaneous medical documentation”
“…the sole cause of [the claimant’s] intrusive auditory and vestibular symptoms since the index accident is the trauma she suffered in the index accident. I have no evidence to support the opposite conclusion…she has post-traumatic migraine and post-traumatic vestibular migraine” (with light sensitivity and visual motion sensitivity). 153 A fascinating by-product of Dr. Savundra’s evidence was the beginnings of a new, alternative, potentially functional theory regarding the claimant’s vestibular complaints, which alternative may or may not be attributable to an underlying structural abnormality. The claimant’s reported symptoms are apparently consistent with Persistent Postural-Perceptual Dizziness (“PPPD”). This newly redefined functional syndrome (Popkirov et al: March 2018) requires no specific provocation and can persist independently of any lesional or structural disease. Anxiety and neurotic personality traits are associated with its onset and the syndrome can be the cause of balance problems and knee-buckling without falls (amongst many other things). However, Dr. Savundra says: “I am not pushing PPPD as a diagnosis” and this intriguing new syndrome was not explored in the evidence, save for a few moments in passing. This unexplored, speculative offering probably only underpins the difficulties encountered with diagnosing complex patients such as the claimant. 154 I do not accept Dr. Savundra’s conclusions about the cause of the claimant’s vestibular symptoms. 154.1 In my judgment Dr. Savundra is, to a significant degree, working backwards from the brain injury diagnoses of Dr. Allder and Ms. Levett, which I do not accept for reasons I have already given. This implication can be drawn from paragraph 6 of the Joint Statement, suggesting as I find it does that Dr. Savundra is also reasoning backwards from his acceptance that accident-related vestibular problems contributed to the Claimant’s change of career. This allows Dr. Savundra to discount the absence of cotemporaneous medical complaints. In the same paragraph it is clear he is relying closely on the claimant’s self-reporting of symptoms years after the event. Test results he describes as suggestive of or consistent with these diagnoses do not take matters any further when the preferred evidence of Dr. Heaney is considered. Dr. Savundra had not seen Dr. Heaney’s evidence at the time he wrote his Report (although he stood by his own Report at the trial). 154.2 The serious gaps in the contemporaneous medical information remain without any remotely satisfactory and acceptable explanation from the audio-vestibular evidence. 154.3 Consistent, accurate self-reporting of symptoms, the tracking of a clear timeline from the accident, is recognised by Dr. Savundra as important but it is absent in this case. Dr. Savundra does not and could not plug this vital link in the chain of causation. 154.4 The factual evidence, considered by Dr. Savundra as part of the paperwork provided to him, was necessarily one-sided and there is nothing in there about the all-important details of the claimant’s work and change of career plans and activities throughout the second half of 2013 and 2014. Neither does there appear to be any mention of difficulties watching the television. 154.5 Regard must be had to the inconsistencies between some questionnaire answers provided by the claimant, Dr. Savundra’s Report, and what is apparent from other parts of the evidence. Such inconsistencies are important. For example: (a) Dizziness: the surveillance footage does not support the conclusion that the claimant is unsteady on her feet or subject to any of the balance problems which she relates. (b) Dr. Radford reports the claimant walking appropriately without any apparent balance or unsteadiness traits and both Dr. Heaney and Dr. Vanniasegaram see nothing on the video surveillance material (the latter’s viewing being limited) to corroborate vestibular symptoms. (c) The indication given to Dr. Heaney that dizziness petered out before the claimant became pregnant (which would have been late summer 2015) is an entirely different version of events to that reported to other experts and is not consistent with her own statement at the same consultation with Dr. Heaney to the effect that dizziness petered out a year or maybe a year and a half after the accident (which would have been by the early autumn of 2014). These are further concerning discrepancies in the claimant’s self-reporting. 155 Dr. Vanniasegaram was at a disadvantage. The claimant was so late for the appointment that it was shortened and lasted barely 20 minutes. However, although his opinion is more impressionistic than that of Dr. Savundra, it is, in my judgment, more realistic on the facts as they present themselves in this case. He said he was unable to provide a range of possible diagnoses because, bluntly, in his opinion “I did not think there was any vestibular impairment”
“A GP or physiotherapist may miss the nuances of my field; they may miss a diagnosis, but they would not overlook the complaint”