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A claimant teacher failed to discharge the burden of proof that the syndrome of enduring symptoms she reported to the medico-legal experts was attributable to diffuse axonal brain injury caused in a rear end shunting accident and fails to recover damages for her lost career in teaching

6th July 2018

Marcus Grant, instructed by Christopher Dickinson of Dickinson Solicitors Limited appeared for a 35-year-old claimant teacher who brought a claim for damages for the consequences of a syndrome of enduring physical (including vestibular), neuro-cognitive, neuro-behavioural and psychological symptoms she claimed were caused by a rear-end shunting car accident that exposed her head to acceleration-deceleration forces. She claimed, through her experts, that this syndrome of enduring symptoms was likely attributable to diffuse axonal injury [“DAI”] to the connections and pathways of the white matter of her brain.

The defence asserted that this diagnosis was improbable, pointing to the fact that no subjective cognitive, behavioural or psychological complaints were recorded in the A&E notes when assessed for a whiplash injury 2 hours after the accident, an occupational health doctor’s assessment for possible stress at work c. 6 weeks post-accident, a medico-legal GP’s assessment c. 6 months post-accident or a physiotherapist’s assessment  for treatment of the effects of her whiplash injury c. 12 months post-accident.

Whilst accepting that there was no psychological explanation for the enduring syndrome of symptoms and no non-DAI neurological explanation, the defendant through her experts did not proffer any alternative clinical or non-clinical explanations for the reported syndrome of symptoms. The Defendant’s experts accepted that the reported syndrome of symptoms was consistent with DAI, but was unlikely to be DAI attributable to the index accident because of the absence of cogent contemporaneous recording of the symptoms.

Whilst the Court (HHJ Saggerson sitting as a Judge of the High Court) found C unreliable as a witness with regard to aspects of her recollection regarding the nature and effect of the impact of the syndrome of reported symptoms in the early post-accident period, it found that she was not dishonest and that her report and presentation of symptoms was not coloured by malingering or conscious exaggeration.

The Court accepted that in addition to sustaining a significant whiplash injury that left C with permanent nuisance-level symptoms, she sustained some psychological injuries in the form of sub-clinical PTSD and OCD which were successfully treated by the 3rd anniversary of the accident.

It found that she had failed to discharge the burden of proving her claim of diffuse axonal injury, following the dicta in Pickford v. ICI [1998] 1 WLW 1189 and Newman v. Laver [2006] EWCA Civ 1135 in resolving an injury claim on the basis of burden of proof, without making any finding as to the probable explanation of C’s presentation of enduring symptoms.

C’s damages were assessed in the sum of  £41,250.

Permission to appeal the Order has been sought from the Court of Appeal.

Related Barristers

Marcus Grant

Marcus Grant
Year of Call: 1993