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Temple Garden Chambers is a leading common law set based in London and The Hague.
With excellence from top to bottom Chambers provides a first class service in a number of different fields.
20/01/2022
QBD judgment for £1.67 million in favour of a mild traumatic brain injury Claimant faced with a fundamental dishonesty defence following a rear-end shunting road accident.
Instructed by Patricia Ling and Lucy Walpole of Garden House Solicitors, Marcus represented a 34-year-old Claimant [“C”], Natasha Palmer who suffered an enduring cluster of physical, cognitive, behavioural and psychological symptoms following a rear-end shunting accident on the M25. She brought a seven-figure compensation claim.
She was met with a defence alleging that she was fundamentally dishonest because she had dishonestly exaggerated her post-accident difficulties and had dishonestly under-reported her pre-accident vulnerability. The Second Defendant’s [“D”] valuation of the claim was £5,407.
On her case, she sustained a whiplash injury, mild traumatic brain injury [“mTBI”] with associated post-traumatic migraine, subtle audiovestibular [“AV”] injury and secondary psychological sequelae sufficient to derail a promising career in marketing.
D accepted only that she had sustained a short-lived whiplash injury and that some psychiatric injury had resulted that aggravated a pre-accident relevant psychological history but denied that she had sustained any organic brain injury and denied that any of her enduring difficulties were attributable to the accident.
C’s focus after the accident was on her physical injuries, principally a whiplash injury to her neck and low back and also soft tissue injuries to her left knee. She was also troubled by headaches that she understood to be a consequence of a ‘concussion’, diagnosed in hospital on the day after the accident, which she was reassured would settle over time.
She returned to work within 10 days of the accident and struggled. She resigned from her job 5 months later and then, 3 months later, took on a part time role as a self-employed consultant in marketing for 9 months before starting a third job, in which she also struggled, and was permitted to work from home for some of the time.
She continued to report significant pain from her injury sites which had become chronic. Pain experts were instructed. She was found to have been asymptomatically hypermobile before the accident, a poor prognostic indicator to recovery from soft tissue injury.
The Claimant’s medico-legal team presented a picture of mTBI with overlap injuries from the chronic pain, specifically the post-traumatic migraine, AV pathology and significant enduring neuropsychiatric symptoms, all of which persisted with variable levels of severity at the 7½ year anniversary at the time of the adjourned trial in November 2021.
The Defendant elected not to engage in the Rehabilitation Code. It sought instead to focus its defence on C’s pre-accident history of intermittent depressive episodes. 5½ years post-accident, it deployed c. 700 pages of C’s social media posts to advance a positive case of fundamental dishonesty, set out in a pleading 18 days before the original trial in the action in March 2020 (adjourned because of the first pandemic lockdown), , contending that C’s self-report of her variable levels of function to the medico-legal experts belied the impression she chose to portray to the outside world on her open Instagram and Facebook accounts.
Upon service of the fundamental dishonesty pleading, C asked D for its covert surveillance that it had elected not to deploy or rely on. 17 days of covert surveillance were disclosed, which largely corroborated C’s subjective account of her activity levels to the experts and was not referred to by D in its closing submissions.
At trial, C’s experts laid before the Court their coherent methodologies in reaching their clinical formulations of C’s presentation. On the issue of mTBI, C’s neurological expert, supported by her neuropsychiatric and neuropsychological experts, explained that the acceleration-deceleration-rotation mechanism of trauma to the brain would have impacted specifically on the midline structures of C’s mid brain, specifically the fornix and the corpus callosum, which he identified as a ‘cone of vulnerability’ to such a trauma.
The Court accepted that such an injury explained the delayed pattern of denser PTA commencing c. 30 minutes after the accident, consistent with a diagnosis of mTBI.
The Court placed particular reliance on the academic paper “Concussion is confusing us all” by Prof. Sharp, which explained the importance of a systematic approach to brain injury assessment, discouraged clinicians from trivialising head injury severity by a diagnosis of ‘concussion’, and confirming that a significant minority of mTBI patients had a poor outcome; that minority generally presented with overlap injuries, as in C’s case.
Also, the Court accepted that chronic pain was an accepted consequence and complication of mTBI.
The Court preferred C’s experts to D’s experts across all disciplines that gave oral evidence. The Court observed: “Many of the issues concerning the Claimant’s symptoms and the complicated inter-play between the physical, neurological and psychological consequences of the accident required sophisticated and at times cutting-edge expert evidence.”
The Court was critical of two of D’s experts. It observed that D’s neuropsychological expert’s first report was “littered with judgmental and rather scathing comments and that her language went beyond that which was appropriate for an expert to employ and suggested a level of unconscious bias”.
The Court was unable to attach any weight to D’s pain expert who had departed from his CPR 35 duties to the Court in a number of respects. The Court cited the Court of Appeal decision in Liverpool Victoria v Zafar [2019] EWCA Civ 392 in stating that the importance of the Practice Direction to CPR 35 and the importance of not departing from CPR 35 duties, either intentionally or recklessly, “cannot be over-emphasised”.
The Court rejected D’s submissions that quantification of the loss of earnings claim should be by reference to a lump sum Smith v Manchester / Blamire approach, distinguishing the cases of Billett v Ministry of Defence [2015] EWCA Civ 772 and Murphy v Ministry of Defence [2016] EWHC 03 (QB) on the facts, preferring instead a multiplier-multiplicand approach, following the dicta in Inglis v Ministry of Defence [2019] EWHC 1153.
The Claimant recovered c. £1,679,406 in damages and an additional c. £75,000 pursuant to CPR 36.17(4)(d) and some of her costs to be assessed on an indemnity basis with penalty interest.
A copy of the judgment can be found here.
