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mTBI Claimant recovers £509,000 and defends a fundamental dishonesty strike out defence in the High Court

18th May 2021

Marcus Grant, instructed by Colin Cook of Hatch Brenner Solicitors, represented a 47 year old Claimant [“C”] who struck his head walking beneath a low door lintel in the course of his employment.

On his case, he developed a mild traumatic brain injury [“mTBI”] characterised by a period of post traumatic amnesia [“PTA”] of at least a few minutes by reference to the Mayo classification of brain injury, together with post traumatic migraine, responsible for causing periodic flare-ups in his cluster of physical, cognitive, behavioural and psychological symptoms on physical and mental exertion.

On his case, the symptoms persisted, and within two months provided the kindling for the onset of a Severe Depressive Episode which then became his primary clinical condition and persisted at a severe level for at least two years before remitting partially; he was left with a residuum of his mTBI symptoms, which by that stage were better explained by reference to a Functional Neurological Disorder and a co-existing Somatic Symptom Disorder [“SSD”].

By the date of trial he had recovered a part time earning capacity in a less well remunerated and pressurised job. He conceded a reduction in the top line of his loss of earnings claim to acknowledge a prior vulnerability to chronic pain, having suffered fibromyalgia for several years roughly 8-9 years before the accident, that had left him with low grade chronic pain through to the time of the accident for which he continued to treat with medication and graded exercise.

The Defendant [“D”] denied that there was any brain injury, explaining that his presentation reflected a pre-existing SSD unrelated to the ‘mild bump on the head of a kind which people suffer regularly and which has led to no long-term consequences at all’ when walking beneath the door lintel that was trivial and incapable of causing a ‘Symptomatic Possible TBI’ per the Mayo classification, let alone a mTBI.

D contended that the deterioration in his SSD symptoms that progressed into a genuine depressive disorder two months post-accident was stress mediated by the knowledge that he was about to be made redundant, a fact it was said by D he had lied about in the presentation of his claim; this alleged lie, coupled with consistent failure on embedded validity and stand-alone effort tests with both neuropsychological experts’ tests and alleged exaggeration in his presentation in various material aspects of the claim formed the basis for D’s positive strike out defence of fundamental dishonesty pursuant to Section 57 of the Criminal Justice and Courts Act 2015.

The Court preferred C’s case to D’s case and C’s experts to D’s experts wherever there was material disagreement.

Specifically, the Court found that PTA of a few minutes was sufficient to give rise to a mTBI and, importantly that it was possible to suffer PTA without showing any obvious signs of confusion.

Further the Court accepted a concession made by D’s neurologist that he had experienced patients with ‘pretty innocuous head injuries … sustained in sport who have had enduring symptoms going on for many years’ and the Court saw no basis to distinguish sporting injuries from the facts of this case.

Further, the Court found that ‘the evidence of the severity of the impact is a relatively poor indicator of the likelihood of a person suffering mTBI’.

The Claimant recovered c. £509,000 in damages and an additional c. £50,000 pursuant to CPR 36.17(4)(d) and some of his costs to be assessed on an indemnity costs.

A copy of the judgment can be found below
Long v. Elegant Resorts Limited [2021] EWHC 1330(QB)

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Related Barristers

Marcus Grant

Marcus Grant
Year of Call: 1993

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