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Mild Traumatic Brain Injury Established. Dr Holden Criticised


James Arney KC, instructed by Christopher Kardahji of  Irwin Mitchell, acted for the Claimant in a 4-day quantum hearing. The Claimant sustained a serious ankle injury and had been affected psychologically as a result of her accident.  The Claimant and the Defendant were £460,000 apart in their assessment of damages.  After hearing oral evidence from neurologists, neuropsychologists and psychiatrists, HHJ Hedley held that the Claimant had suffered a mild traumatic brain injury. The Defendant’s psychiatrist, Dr Holden, was criticised. HHJ also awarded long term commercial assistance for care of the Claimant’s animals.

The Claimant claimed a total award of £594,498. The Defendant contended that an award of £136,815 was appropriate in its counter-schedule, however a higher figure of £206,640 was conceded in final submissions. Substantial issues remained in dispute, particularly future care and assistance including lifelong equine care.

On 8 May 2014, the Claimant was driving towards Sleaford behind a lorry at 50mph. The Defendant’s insured was driving in the opposite direction when his vehicle came onto the wrong side of the road and collided with the lorry. In the process, the front offside wheel of the Defendant’s insured car was ripped off. The vehicle pivoted and turned sharply across the rear of the lorry and directly into the path of the Claimant’s vehicle. The Defendant’s insured died in the collision.

The principal areas of dispute between the parties included: general damages, the claim for future medication and treatment, and most significantly the claim for future equine and domestic assistance.

Expert evidence was heard from each of the three separate disciplines as to whether the Claimant has suffered a traumatic brain injury:

Consultant neurologists (Dr Allder for the Claimant, Professor Wills for the Defendant);

Neuropsychologists (Dr Griffiths for the Claimant, Dr Vessey for the Defendant); and

Consultant psychiatrists (Dr Latif for the Claimant, Dr Holden for the Defendant).

HHJ Hedley held that whilst each of the other 5 experts who gave oral evidence were impressive and quick to acknowledge alternative points of view and make appropriate concessions to them, Dr Holden was at times particularly defensive. In his judgement, Dr Holden did not approach this case with an open mind. On the contrary he was quite prepared to make unconsidered assertions if they would support his view. HHJ Hedley preferred the Claimant’s evidence of Dr Latif. Although the end of the litigation would undoubtedly be a relief to the Claimant, Dr Holden’s assertion that it would have a significant impact on her symptomology was not accepted.

HHJ Hedley held that the Claimant did indeed suffer a mild traumatic brain injury (despite no recorded lowered GCS reading and no evidence of brain injury on imaging) on the basis that: the collision impact was at speed and was heavy; the Claimant does not have clear recollection of events and there was no recorded GCS score taken in the immediate aftermath of the accident. If, as Dr Holden suggested, the Claimant has substantially recovered from PTSD and her adjustment disorder, it would leave the continuing cognitive symptoms largely unexplained. It was clear that despite a substantial treatment regime, which had produced psychological improvement, the Claimant’s cognitive symptoms are largely continuing; pointing towards a brain injury. PSLA was awarded at £70,000, taking into account the Claimant’s severe ankle injury and the mild traumatic brain injury. The figure included a modest amount to reflect the Claimant’s continuing risk of epilepsy over the month following trial.

The judge held that the accident was the reason for the Claimant’s redundancy.

Following the accident, the Claimant struggled with the daily care of her horses, as well as heavier domestic tasks. The Claimant required assistance that her adult children were no longer able to provide, and so her former husband moved back into the property to support her. In assessing damages for future care and assistance, HHJ Hedley considered that the Claimant has always had a passion for horses and stated in evidence that she could not manage without horses in her life. The reason why her former husband moved back in was to provide help and he would not have done so if the Claimant did not need help. Although, as the Defendant contended, the Claimant’s involvement with horses is a lifestyle choice, it is a choice which she made before the accident when she was able to pursue it. But for the accident, she would not have needed family assistance. Hedley J. held that given that the object of compensatory damage is to put the Claimant into a position she would have been in but for the accident, she should be enabled to continue to pursue her major life hobby and interest. It would be unreasonable to expect the Claimant to give up her horses.

Judgement was awarded for the Claimant in the sum of £480,731.72, beating the Claimant’s own Part 36 offer. The Defendant incurred Part 36 penalties in respect of damages, interest and costs.

The final amount awarded was £536,628.10.

Related Barristers

Personal Injury
Clinical Negligence
Costs & Litigation Funding

James Arney KC

Call 1992 | Silk 2021

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