1st October 2021
Marcus Grant represented the Claimant.
Marcus Grant, instructed by David Marshall of Anthony Gold Solicitors, represented a 50 year old Claimant [“C”], Jem Stansfield suffered a mild traumatic brain and ancillary subtle injuries in a crash test experiment in the course of his employment for the BBC. The experiment involved C acting as a crash test dummy for the BBC in two forward facing and two rear-ward facing simulated crashes into a metal post at impact speeds of between 8 and 11 mph (which can be viewed on YouTube).
On his case, C sustained a whiplash injury, mild traumatic brain injury [“mTBI”], subtle audiovestibular [“AV”] injury, and secondary psychological sequelae sufficient to derail a promising television career.
The BBC accepted that C suffered a moderate whiplash injury with depressive symptoms but denied that he sustained any brain or AV injuries and put him to proof of his claim, citing the dicta in Pickford v. ICI  1 WLR 1189 that required a Claimant to prove the medicine underpinning his claim in circumstances where ‘the case involves the assessment of complex and disputed medical evidence’.
The case was heard by Mrs Justice Yip DBE over the course of 10 days. The Court found that the interplay between different medical disciplines was complex and that C had suffered injury to his neck, brain and AV system and secondary psychiatric injury in the crash tests. Individually none of these injuries was particularly serious, but their cumulative effect could be. Research and clinical practice demonstrated that each of these injuries can be associated with unexpectedly poor outcomes and that C fell into this patient cohort.
Notwithstanding the absence of any neuroradiological findings of brain injury or clear evidence of post-traumatic amnesia, the Court found that C had nevertheless sustained a mTBI.
The Court considered expert engineering evidence that confirmed that each of the crash tests had exposed C’s brain to potentially damaging forces, that repeated impacts over a short period increased the risk of TBI, that there was evidence of cognitive impairment after the crash tests, notwithstanding that he was able to continue performing in front of the camera, there was evidence of short lived anosmia and that he developed more obvious signs of agitation and confusion and uncharacteristic behaviour roughly 6 hours later. Also, there was evidence of strikingly impaired processing speed performance on valid neuropsychological testing.
It was common ground between the neurological experts that some mTBI patients experience ongoing symptoms of brain injury and are subject of great interest in focus.
The Court found that C sustained subtle damage to his left utricle and semi-circular canal (of the inner ear) as a result of the crash tests which was the cause of his early complaints of dizziness and balance problems and of his migraine. This damage was observed following meticulous and reliable neurotological assessment. It found that the tinnitus that presented several weeks after the crash tests was attributable to them. The objectively modest AV damage could not explain the ongoing significant impairment on its own, but was another important piece of the jigsaw to C’s complex presentation.
The Court accepted that C developed a significant psychological reaction that was superimposed on his organic injuries that included a major depressive episode and post-traumatic symptoms;, over time, his presentation satisfied a dual diagnosis of Somatic Symptom Disorder lying alongside the enduring whiplash, mTBI and AV injuries.
Four weeks before trial, the Defendant elected not to rely on its neuropsychological or psychiatric evidence. The Court rejected the Defendant’s neurological and AV experts’ evidence that excluded any mTBI or AV injury attributable to the crash tests.
The Court assessed C’s damages at £2.42 million, the bulk of which represented lost earning capacity on a loss of chance analysis. One third of the award was deducted to reflect an agreed 2/3:1/3 liability apportionment agreed between the parties.
The Court expressed its astonishment that anyone though that using a human crash test dummy to simulate a crash test at between 8 and 11 mph could be thought to be a sensible idea.
Jonathan Watt-Pringle QC represented the Defendant, instructed by DAC Beachcroft.
A copy of the judgment can be found below here.