J v. D (Unrep) 11.11.20
The Claimant, a 61-year-old hotelier, recovered £1.2m in a negotiated settlement for injuries sustained in a road accident.
He was involved in a high speed rear end shunting accident when his motorcycle was struck from behind. He sustained a number of bony injuries and a suspected head injury.
As is common in such cases, his physical injuries predominated the acute and subacute recovery phases. However, it was the consequences of the head injury that became most debilitating in preventing him from returning to running his restaurant and hotel businesses as he would have liked.
He presented with a classic cluster of physical, vestibular, neuro cognitive, behavioural and psychological symptoms. The most disabling of these were his compliance mental fatigue, his disinhibited temper and his inability to read social cues.
On the basis of his experts’ evidence, the diagnoses underpinning this enduring cluster of symptoms were technically ‘moderate/severe’ diffuse axonal injury by reference to the MAYO classification, concussion of the vestibular system, post-traumatic migraine and a mild neurocognitive disorder with behavioural disturbance due to traumatic brain injury (DSM V 331.83).
His standard MRI scans were ‘normal. However, a DTI MRI scan at the 4th anniversary of the accident identified two areas of micro hemorrhage indicative of traumatic diffuse axonal injury within corpus callosum.
The Defendant’s expert team dismissed any suggestion of traumatic brain injury, even in the face of the DTI scan, which they dismissed on the grounds of being a research tool, incapable of dating any artefacts, which in any event were more likely attributable to the claimant’s pre-accident medical history of having suffered falls as an amateur jockey.
The Defendant attached weight to his failure on symptom validity and effort testing to insinuate that there was an element of psychological overlay in his presentation which may or may not have been volitional.
The Defendant contended that his hotel and restaurant business would likely have failed in any event by reason of the Covid pandemic.
The claim was compromised part way between the parties’ respective best cases through a structured negotiation.