PROVING THINGS 122: THE CLAIMANT MAY NOT BE DISHONEST BUT SHE IS NOT ACCURATE: A HIGH IQ IS NO GUARANTEE OF COMMONSENSE

Many cases rest on the credibility of witnesses.  A detailed examination can be found in the judgment of HH Judge Saggerson (sitting as a High Court Judge) in Hibberd-Little v Carlton [2018] EWHC 1787 (QB). There are issues here in relation to credibility, accuracy of recollection and some of the expert evidence that was adduced. Take particular note of the judge’s “side notes” in relation to the claimant in the witness box and also the notice that the judge took of claimant at the back of court.

” I do not accept the accuracy of the claimant’s evidence about the circumstances leading to her career change or the reasons she has given for it. To put it mildly, her witness statements gloss over the detail of the change and how, as well as why, it came about. Her statements are, frankly, perfunctory about this. The change could not have happened and did not happen “overnight”….”

THE CASE

The claimant suffered an injury in a road traffic accident, liability was not in dispute. However the injuries that the claimant sustained were very much in dispute.

” The Claimant claims she suffered a cluster of cognitive, behavioural and physical problems due to the accident in that she sustained a head injury; a diffuse axonal injury [“DAI”] together with post-traumatic stress disorder [“PTSD”] and associated agoraphobic consequences with panic attacks and obsessive-compulsive disorder type symptoms [“OCD”], all as a result of the collision”

The claimant claimed that the injuries had stopped her working as a teacher and she had opened up a tea shop instead.

The defendant’s case was that this was a minor accident and the claimant suffered minor injuries.

“Although the defendant does not accuse the claimant of being dishonest or of fabricating her symptoms, or consciously exaggerating them, she is put to proof that her subjective complaints are attributable to a DAI and an associated vestibular injury caused in the accident. The defendant maintains that the claimant is not suffering from a DAI or damage to the vestibular or auditory systems. “

THE DEFENDANT’S APPROACH

It is important to note that the defendant was not alleging fraud or fabrication.

1. 1. The defendant acknowledges that there is no over-arching (or any) allegation of fraud or fabrication on the claimant’s part and accepts that none of the medical experts puts forward any positive material to the effect that the claimant is malingering or consciously exaggerating the type or the effects of the symptoms she alleges.

   2. In this regard the decision of the Court of Appeal in Newman v Laver & Anr [2006] EWCA Civ 1135 is instructive. At paragraph 81 Rix LJ states:

“In my judgment, there was no need of any blanket allegation of fraud, fakery or fabrication in the pleaded defence … The defence and its counter schedule of damages, together with the expert’s reports … sufficiently put in issue the defendant’s lack of acceptance that [the claimant] had suffered the injuries and sequelae of which he complained… In truth there was no wholesale attack of fabrication, no general attack on [the claimant’s] honesty … Instead, there was, as must occur at the close of many a trial, a detailed submission by reference to specific points which had arisen in the evidence as to why the judge should regard [the claimant’s] credibility as being both at the heart of his claim and as being suspect. The submission divided its fire between specific allegations of falsehood, exaggeration, and inconsistency, to be balanced … against the lack of objective verification of the symptoms relied on.”

1. The defendant’s case is that we are in very similar territory here. If anything, the range of disputes across all sections of the evidence in this case are wider than was the case in Newman. The defendant maintains that across the whole range of disputes, the case on the claimant’s reliability and accuracy has been adequately foreshadowed in the Counter-Schedule, the medical evidence and the written submissions advanced.

2. I accept that the defendant’s approach is proper and viable. Where it leads remains to be seen. The absence of an alternative positive case on causation or diagnosis is an important feature of the case and must be taken into account in the context of all the evidence. However, the reliability and accuracy of the claimant (and other witnesses) must needs be approached, I accept, in a more nuanced way than by blanket allegations of fabrication or conscious exaggeration, particularly when much depends on the claimant’s presentation as a witness (both in writing and in court) and where her accuracy and reliability is questioned in areas of the evidence other than those directly impacting on the medical issues. The issue of the claimant’s accuracy and reliability are interconnected across the evidence in this case as a whole. Furthermore, the extent of the inconsistencies and inaccuracies relied on could not have been fully or even substantially apparent before the claimant had given evidence when the full impact of her evidence in the context of other evidence and documents would have become clear.

3. In my judgment it is at least open to the defendant to submit that if medical opinion about the claimant is substantially based on her accuracy, and her accuracy is questionable, then the medical conclusion may also be questionable regardless of whether a plausible alternative cause or diagnosis is forthcoming. This case is not all about the medical evidence. I note that several other brain injury decisions at first instance have been included in the trial bundles. These are cases in which the various claimants’ expert witnesses were the same as in the present case and in each example, the claimant was (to a greater or lesser extent) successful in recovering substantial damages for brain injuries. It is not submitted on behalf of the claimant that these decisions are determinative of the outcome in this case, but rather that they are informative. The most pertinent of these is the most recent: Siegel v Pummell [2014] EWHC 4309 (Wilkie J) which shares many parallels with this case, and as it so happens, the claimant and Mr. Siegel have been friends for many years. Each of the cases in which judgments have been included necessarily turns on its own facts and those facts are applied to the medical evidence presented to the court. Accordingly, however informative they are, the assistance they provide on the outcome of other cases such as this one is limited. The judgment of Wilkie J shows that the decision in Siegel was, as one would expect, due to any number of factors including the Judge’s finding that Mr. Siegel was a consistent historian with regard to his symptoms, that he lost consciousness, that there was a rotational element in the injury mechanism caused by the impact, and that his was an accident that had caused significant damage to both vehicles and was not as minor as the defendant had suggested (it was no “mere bump”). Such considerations are all in play in this case.

THE JUDGMENT ON THE CLAIMANT’S CREDIBILITY AND ACCURACY OF REPORTING

The judge found that the key issuewas the claimant credibility in terms of accuracy of reporting.

1. 1. For reasons that I give below and discuss further in the context of the expert medical evidence, I am not  satisfied on the balance of probabilities that the accident caused an organic brain injury with the cognitive and behavioural, and audio-vestibular symptoms that have been the central controversy in this action (whether attributable to DAI, related audio-vestibular pathway problems or otherwise). This conclusion arises from the unsatisfactory nature of the claimant’s evidence as a whole, its inconsistency with medical records and its internal inconsistency, together with the absence of any clear timeline in the contemporaneous or near contemporaneous medical information.

   2. The claimant’s evidence and that of her husband, about what she reported and what happened at the relevant medical appointments up to February 2014, is so riddled with internal inconsistencies and is so lacking in coherence when compared with the documents that no reliance can safely be placed on it. I have reminded myself that consistency and coherence are not the same thing as uniformity or unanimity and that a few infelicitous lapses of recollection in the context of repeated history-giving are to be reasonably expected, as might be incidental errors in the transcribing of information into notes, records and reports. However, the claimant’s narrative overall is so incoherent in my judgment as to defy explanation on these grounds. The reliability of the claimant’s reporting of the constellation of her cognitive and behavioural symptoms allegedly having a temporal link with and thus reported as being caused by the accident is open to serious doubt.

   3. I do not accept that the OH doctor, the medico-legal doctor and the physiotherapist involved up to February 2014 have all missed or neglected almost every aspect of the alleged neurological and vestibular consequences, or even the possibility of such consequences, which the claimant now complains were on a continuing trajectory since the accident.

   4. The records of the OH doctor, the medico-legal doctor and the physiotherapist at certain points specifically note the absence of symptoms about which the claimant has subsequently complained and attributes to the accident. It is unlikely that the notes of absence of symptoms have been invented or represent errors on the part of all of these medical practitioners.

   5. I reject the claimant’s suggestion that in some respects the OH record has been made up. The claimant’s evidence about what she or Trevor told these practitioners and what they recorded, is in my judgment, ragged and internally inconsistent. Both accepted that they knew they had been sent to see Dr. O’Connor to obtain a report on their injuries with a view to legal action. There is no good reason why a full description should not have been supplied and I find that it was and is reasonably accurately reflected in the records.

   6. The positive conclusions regarding the absence of certain symptoms in Dr. Allder’s report (e.g. no vertigo) supports the conclusion that a temporal connection with the accident is lacking in the case of major symptoms. I do not accept that symptoms such as paranoid anxiety, flashbacks, migraine, vertigo and light sensitivity would all have been omitted from reporting to all medical practitioners for the entirety of the first year after the accident had these symptoms manifested themselves at any time likely to be linked with the collision. I do not accept that “atrocious” headaches and “big time” dizziness could have been overlooked by medical practitioners or that the claimant was limiting herself to reporting what she considered to be within the specialisms of the practitioners she saw.

   7. I do not accept that in circumstances where the claimant says she was experiencing severe and chronic, debilitating, potentially career-ending cognitive and behavioural symptoms she would have decided not to raise them even to a physiotherapist (Mr. Patel) or an “osteopath” (Dr. O’Connor) or at her OH appointment. I find this inherently improbable. She was a strong, professional woman quite capable of recognising (had it been the case) that there was a connection or at least a possible connection of some sort between her cognitive and behavioural symptoms and the accident. She must have had a layman’s appreciation of this possibility from her friendship with Mr. Siegel and her involvement as a witness in his case.

   8. The factual evidence of family, friends and colleagues is too non-specific, subjective and, at least in part, reliant on the claimant’s self-reporting, to supply a timeline anything like sufficient to overcome the absence of any contemporaneous medical information supporting a link between the accident and the enduring symptoms alleged.

   9. I reject the notion in this case that as a high-functioning, highly intelligent woman the claimant might simply have been “pushing through” her severe and chronic non-orthopaedic symptoms due to lack of insight, fear of the stigma associated with brain injury and the hope that it would all somehow go away. I also reject the idea that the confused, chaotic and internally inconsistent evidence she gave about what happened at the 2013-2014 medical appointments and what she remembers saying or not saying at these appointments is only a reflection of the fact that she had indeed suffered a brain injury as a result of the accident. The claimant cannot have been concerned about the stigma of a brain injury she did not know she had, and given that dizziness (whether associated with balance problems or not), chronic fatigue and headaches could reasonably be associated with a whiplash-type injury by any layperson, there would have been no call for reticence about them at any medical appointment. In any event I cannot accept that medical practitioners would independently make so many positive mistakes (e.g. no dizziness; mood and energy “OK”), and this fits well with Trevor’s memory that the claimant’s balance problems had deteriorated since she became pregnant (given this comes from a statement in April 2016, I infer he means pregnant with Henry). This is indicative of an unexpectedly worsening condition.

   10. When looked at in the context of the entirety of the other evidence, the possibility that it is an accident-related brain injury that has caused the claimant to be confused, inconsistent, and to forget to mention critical aspects of her injuries, which presents her unfairly as an unreliable historian, can safely be discounted.

   11. Before I turn to the expert medical evidence I will deal with other aspects of the claimant’s case that have caused me to doubt the reliability and accuracy of her evidence and show why I cannot accept that the claimant or her husband are reliable or accurate in the descriptions they give regarding the onset and trajectory of the critical non-orthopaedic symptoms they describe, or indeed, much else.

THE EVIDENCE IN RELATION TO CHANGE OF CAREER

Change of Career

1. 1. The following chronology is not controversial and provides a general background.

54.1 Following a long-term relationship with Trevor Little, the couple married in October 2012.

54.2 This was shortly after the claimant changed schools, leaving Camden to join the staff at Selsdon Primary School.

54.3 She and her husband went on a delayed “honeymoon” to Alaska in July 2013.

54.4 The Mug Tree Limited (her tea room business vehicle) was incorporated on 7 October 2013, of which after 6 November 2013 she was the sole director.

54.5 She resigned her teaching post in May 2014 (effective at the end of that summer term).

54.6 In June 2014 she withdrew from a proposal to take possession of commercial premises in Crowborough, having been in contact with property agents since at least November 2013.

54.7 The claimant and Trevor moved from Croydon to East Sussex on 7 July 2014.

54.8 She took possession of tea room premises in November 2014 in East Grinstead.

54.9 On 13 December 2014 she opened the tea room in East Grinstead (The Mug Tree).

54.10 After three unfortunate early miscarriages between October 2013 and March 2014, the claimant gave birth to a son, Henry, on 7 May 2016.

1. 1. Trevor describes the claimant as headstrong and very independent. I accept that assessment. At the time of the accident the claimant was a primary school teacher employed at the Selsdon Primary School where she had been since the autumn term of 2012, having moved from Camden Primary School. She had a Master’s degree in education (obtained with merit in March 2013) but otherwise, for one reason or another, her academic qualifications were undistinguished. She considered herself a committed and ambitious teacher; a high-flyer, and this view was shared by several others, although I have concluded that nobody had as high opinion of the claimant as she did herself. She describes her teaching career as “glittering” and “flawless“. She considered herself “very good“. To back this up she points to a post-resignation episode in 2015 where she says she was “head-hunted” for a senior SEN role but was unable to take it up due to her accident-related injuries.

   2. It is worth pausing to consider this. As a result of her profile on social media, the claimant was approached and asked if she would consider applying for a senior SEN role at a handsome salary because her background seemed to fit the bill. I am sure that in a social or conversational context nobody would be unduly bothered about this being described as “head-hunting”, but the claimant’s explanation about this in her oral evidence is informative. She was very reluctant to accept that the approach originated from little more than a social media mail-shot (which it obviously was), but worse, whilst recognising that she did not at that time have the relevant qualifications or appropriate accreditation to undertake the role, she was absolutely confident that she could have secured the job and got the required accreditation and qualifications as she went along; in post. In cross-examination on this subject the claimant was treated very gently, but in my judgment her attitude to this “head-hunting” incident was, frankly, silly and unrealistic. Had she remained in teaching it is possible that she would have obtained the necessary qualifications for such a role, but the direction of her evidence on this (similar to her attitude about setting up and running a business) was that she as good as had the job if only her injuries had not got in the way. I inferred that she was more than a little envious of her former colleague Emma Espin who had made a not dissimilar move into the lucrative private sector in a special advisory role. What this small part of the evidence illustrates is that the claimant has an over-inflated idea of her pre-accident capabilities and a tendency to exaggerate and jump to unwarranted conclusions.

   3. That is not to say she was not a talented primary school teacher. Clearly, she was. A number of witnesses (family, colleagues and friends) were called on her behalf and their unanimous view was to the effect that at both Camden and Selsdon she was well organised, hardworking, dynamic, confident and well-liked. She had, I accept, set her sights on promotion particularly within the area of special educational needs [“SEN”], and her move to Selsdon was designed to increase her profile as a team leader with a view to undertaking responsibilities for “whole school” development in addition to duties as a class teacher. Selsdon was a larger school and the claimant was head of year with ICT responsibilities. As her mother said, and I accept, teaching had been the claimant’s life-long ambition and she thrived for some years. I find that this is an accurate, general (if subjective) overview of the claimant as of autumn 2012 when she changed schools. When the claimant announced a career change in 2014 I accept this came as shock to everyone not least of all her profoundly disappointed parents.

   4. Such objective assessments of the claimant as a teacher as there are support the proposition that the claimant was at the very least a perfectly good teacher whose ambition for advancement I infer was based on reasonable grounds even though the future was inevitably uncertain. Her former head teacher at Camden confirms as much. I note, however, that the performance indicators grading her attributes against specified teaching criteria were much the same before (September 2012) as they were after (September 2013) the accident. Indeed, the lower number of “Inadequate” results in 2013 is a small indication that by then she may have been doing rather better than she had the previous year. The claimant’s ambition to progress as a teacher was thwarted, at least temporarily, in the autumn of 2013 when Mr. Wollaston, the head teacher, left Selsdon.

   5. This is what the claimant says about her career change in her witness statements dated 18 March 2016 and 4 July 2017.

59.1 “In July 2014 I took the decision to leave a profession that I dearly loved before I was pushed. It was the hardest decision that I have ever taken in my life, but one that I knew I had to make. I knew that I had to take on something far less demanding cognitively and I naively thought that running a small coffee shop might be the answer. (It) should have been a walk in the park for someone like me …”

59.2 “At the beginning I had the enthusiasm to get the shop off the ground and was working 6 days a week in order to do so, but this took its toll on my health and wasn’t sustainable.”

59.3 “Before starting the coffee shop I had a significant rest period. I had given up full time employment … in July 2014 and did not begin to work with the coffee shop until November 2014. This meant I was well rested and had plenty of opportunities to recover from the fatigue I had been experiencing … I was able to maintain a clean house as I had little else to do other than housework and some slight preparation of paperwork for the coffee shop.”

1. 1. In oral evidence she said: “suddenly I found everything difficult by early 2014 (between January and March) and could not catch up”. She said it was difficult to put a time on her decision to change career but “overnight I struggled with everything …but I was in denial that there was anything wrong”. She also said, in language I consider to be worryingly close to the language of Ms. Levett: “I hit a wall. I lost my engine; the motor”. Summing up her position in a statement dated 14 December 2017 the claimant says: “I do grieve for the person that I once was and the career that I had but Ms. Levett has helped me to come to terms with the new me…”. This comes straight out of the psychologist’s chair or a “soap opera” and is singularly unpersuasive. I was no more impressed with Trevor’s observation (from his third statement in December 2017): “I could see she was pushing herself through barriers of fatigue”.

   2. I do not accept the accuracy of the claimant’s evidence about the circumstances leading to her career change or the reasons she has given for it. To put it mildly, her witness statements gloss over the detail of the change and how, as well as why, it came about. Her statements are, frankly, perfunctory about this. The change could not have happened and did not happen “overnight”….

   3. It cannot be said that her version of her career choice has been moderated over time. As recently as 18 December 2017 in the Care Report Ms. Kirby reports the claimant’s position in these words: “After finishing teaching [the claimant] and her husband decided to open a tea shop…”. That is what the claimant must have told Ms. Kirby and bears not even a passing resemblance to the facts. The following is what I find is the more likely course of events.

   4. I find that the claimant’s change of career had nothing whatsoever to do with the accident nor any injuries caused by the accident. On the contrary, I am entirely satisfied that the decision to purchase and run a business, ultimately The Mug Tree in East Grinstead, was a deliberate and voluntary choice of the claimant’s, confounded as she saw it in her teaching ambitions, disillusioned with changes in teaching style at her school and her feeling of being beleaguered by bureaucracy, school politics, unsupportive colleagues and regulation and the resulting stress. This change of career and lifestyle would have occurred whether or not the accident had happened in March 2013. The claimant was cagey about revealing the business scheme to her parents and probably to her husband because she appreciated that this career decision would come as a disappointment to them (as it did). Trevor seemed to know very little of the business development plans. The claimant wanted to present her family with a fait accompli.

   5. Being headstrong and making a decision to change career that turns out to be a bad decision, as I find is the likely explanation, is not remotely the same thing as acting impulsively as a result of a brain injury. All the evidential pointers in my judgment indicate that, consistent with her attitude to the “head-hunting incident”, the claimant had an over-inflated idea of her business abilities and an equally unrealistic idea about how easy running a new business would be. The accident played no part in any of this.

   6. The claimant and indeed her husband protest otherwise. The claimant’s evidence (as it was teased out in Part 18 Questions and cross-examination) was to the effect that her equal share of the Tea Room business discussed with Frederique was to take shape in the form of herself as the person responsible for the administration of the business and the baking of cakes in the evening after school (supported by baking input from her father). This, initially, she felt she could “easily” do without compromising her professional responsibilities as a teacher and would be doing it for enjoyment, taking only her expenses out of the business. She intended to be a “distance manager“. Once the full impact of the whiplash injuries dawned on her and she suffered the consequences of it as perceived by her at that time, she felt she could take a break for one or two years from teaching, run the café with help from her parents, a cousin and employed staff, and then “pick up where she left off” in the teaching profession once her accident-related injuries resolved as she says she hoped and expected they would. I note that little, if anything, of this was offered to any of the medical experts who together spent at least 20 hours taking personal histories from the claimant.

   7. I cannot accept the claimant’s evidence in this regard and find that she is not a reliable or accurate historian. I conclude that the claimant’s evidence about her career change is based on her reconstruction of what she has persuaded herself would have been the position. This is probably due to the fact that running a small business proved more complicated than the “walk in the park” she says she expected and the business never thrived. It has caused the family to fall into debt. Her explanation that much of this period is lost to her and that many inconsistencies have arisen in her history due to accident-related problems with her memory and concentration, is unconvincing and improbable in my judgment in the light of the documents. Her evidence is not an accurate or reliable picture of the reality. I highlight the following reasons:

71.1 The claimant was and remains a naturally intelligent woman with a FSIQ of about 125-130, a level shared by only the top few percent of the population. If she believed that setting up a new business and running it would be a “walk in the park” or that it would be “easy” and something she could do at a distance or in the evenings after school, particularly if she was also seeking a step-change promotion in the SEN context, then this merely reflects the fact that her FSIQ is not matched by her common sense. The reality is that she was able to undertake much decision-making and preparation for the new business throughout 2013 (particularly the latter part), after the accident and whilst still teaching….

71.7 There is no evidence that the claimant was about to be “pushed” out of the teaching profession as she claims. Such difficulties as she had at Selsdon in the autumn term of 2013 are, in my judgment, entirely consistent with the continuing effects of physical whiplash-type injuries coupled with the claimant’s disappointment at not being promoted and concurrent determination to secure for herself and her husband and future family a quieter, more countrified lifestyle whilst running a tea room.

71.8 The claimant’s social activities in the 12 months following the accident are also consistent with the early medical records, and capability to undertake reasonably hard work teaching and planning a new business venture. This is illustrated by her personal bank statements which do not suggest that she was affected by a period of dense post traumatic amnesia nor the immediate onset of a cluster of seriously, debilitating cognitive and behavioural problems immediately after the accident. This is important because these activities provide further evidence, not only that the claimant was functioning at a reasonable level throughout this period, but also because few of these activities have given any of the family and friends witnesses specific cause to be concerned about the claimant’s welfare. I would have expected some of the activities to trigger contemporaneous concern about the claimant’s memory in the first 4 weeks after the accident if nothing else; or at least a measure of concern about her driving a car. There was none. Examples of the activities include these:

(1) From 2 April 2013 the claimant appears to be functioning at a perfectly unexceptional level. There is nothing very dramatic about this period but she is shopping, visiting restaurants and cafes and going on family outings (driving to Wisely on 7 May) as a matter of routine.

(2) There was a family trip to France in August and September 2013 for which the claimant was the driver (Trevor did not have a licence at this time).

(3) She also drove to a friend’s wedding in the Midlands in October 2013.

71.9 This pattern of routine is certainly consistent with the claimant “pushing through” her problems if those problems were related to a nasty whiplash injury with modest psychological implications, but I do not accept that there was anything more to the claimant’s injuries than this. The absence of any supporting evidence to the effect that driving was causing the claimant “debilitating anxiety” as she says it did, is also noticeable. Her husband, if no one else, might have been expected to stop her driving long distances if debilitating fatigue, dizziness or disorientation had manifested themselves in the period before the family holiday in France. The chronology of events reveals that the claimant was able to push through the effects of her injuries to a point when she returns from France in September 2013, returns to school, visits Dr. O’Connor and on top of that accelerates her preparations for a new business career. Enduring cognitive and behavioural symptoms cannot have affected her in the way she has since related whilst permitting this level of function and organisation.

71.10 The claimant’s explanation of the undated letter from Susan Papas (the Selsdon interim head teacher) about her application to become a Threshold teacher is an example of the claimant’s capacity for wishful-thinking. She unrealistically explains that the phrase “…you did not meet all of the Teachers’ Standards at this time” supports the conclusion that all extra-curricular activities had been suspended and showed that projects outside the main curriculum had been suspended. This tendency for wishful-thinking is matched by her subjective interpretation when it comes to her explanations of what is to be seen on the video surveillance evidence, what she says about The Mug Tree Business Plan and her attempts to explain away the medical information up to February 2014.

71.11 Despite the claimant’s insistence on the central role to be played by Ms Pineau in setting up and running the tea room, there is scant reference to Ms. Pineau in the documents aside from those relating to her one month stint as a Director of The Mug Tree Limited in October/November 2013 and I conclude that whilst a new business was initially planned as a joint venture between the claimant and Ms. Pineau, the claimant was taking the lead and perfectly prepared to go it alone when it proved too much for Ms. Pineau to continue, as it had by November 2013.

71.12 The assertion that the claimant was constrained to make a career change due to severe, chronic cognitive and behavioural problems suffered continuously since the accident is flatly contradicted by the occupation health, Orthopaedic and physiotherapy reports and GP notes up to early 2014.

71.13 I am satisfied that the same assertion is contradicted when the claimant’s presentation as a witness is considered, particularly in the light of the fact that as a result of her friendship with Peter Siegel she would, more probably than not, have had particular insight into the possible causes of any cognitive and behavioural symptoms she suffered.

71.14 The evidence of Louise Fisher (a friend since 2006) was read, so the details of it could not be explored (especially dates, times and timelines) but she says: “I was very surprised when I heard she was setting up the tea rooms. I thought baking cakes and running a tea room would be something (the claimant) might enjoy doing in the future, but it was not a project that I thought she would take on at this stage of her life.” I conclude from this that the idea of a tea room business is something that must have been openly discussed amongst friends, probably before the accident, even if only as a future ambition. This is further support for the conclusion that the business venture was not a sudden or impulsive decision or a necessary, reluctant reaction to the consequences of the accident as the claimant has implied. In her oral evidence the claimant said it was from early 2014 (January – March) that she found it increasingly difficult to cope at school. This is not consistent with the evidence of Emma Espin to the effect that the claimant had expressed her temptation to leave teaching in the run-up to and before the Christmas Holidays in 2013 (entirely consistent with some advanced planning throughout the autumn period).

THE JUDGE’S ASSESSMENT OF THE CLAIMANT AS A WITNESS

An interesting aspect of this case is the care that the trial judge took in looking at the claimant in the witness box (and in the court room as a whole).

The claimant’s presentation as a witness

1. 1. Despite saying in her evidence, on several occasions, that she was finding it difficult to follow the questioning through the many trial bundles; was confused and had difficulty with her memory and dealing with documents; my impression was that the claimant’s subjective concerns were belied by the reality. She was articulate and self-possessed throughout her evidence and had no more difficulty finding her way around the large amount of documentation (including bank statements, medical notes, transcripts and reports) than anyone else. On more than one occasion she was able to draw Counsel’s attention to a particular document or part of a document in order to make a point. On occasions she was adept at explaining away any adverse conclusions that might be drawn against her by detailed and lengthy alternative constructions of documents which she was shown, even though some of those explanations were contrived. She was able to physically handle the heavy trial bundles stored behind her right shoulder in the witness box without discernible difficulty, discomfort or confusion. She asked to be reminded of page references on a few occasions but no more than any witness might be expected to do and no more often than several of the medical experts (for example, Dr. Grace had noticeably more difficulty negotiating the documents than did the claimant). Given the number of hours the claimant necessarily had to spend in the witness box, she appeared no more tired than one would have expected any witness to be under such pressure in such circumstances. She remained reasonably composed and focused throughout. Because of the nature of the medical issues that feature in this action I kept side notes (as her oral evidence progressed) of those occasions when she displayed outward signs of tiredness, confusion, or apparent headaches or eye strain (for example, by rubbing of the eyes). Although there are no capacity issues in this case, I considered at the outset whether the claimant might need to be accommodated as a vulnerable witness. However, even on the day when she forgot her glasses (and the court rose 40 minutes early to accommodate tired eyes despite her having managed for the best part of the day) I see that such side notes are few and far between over the course of her 2½ days giving evidence. Some of the expert witnesses in attendance at the trial commented (when their turn came to give evidence) on their impressions of her to the effect that what they saw was consistent with the symptoms of fatigue, headache, concentration and memory problems about which she still complains. In submission, Mr. Grant says on her behalf: “None of the other witnesses demonstrated the poverty of mental stamina that [the claimant] exhibited in the witness box”. I have to say that this is not an impression I shared and I reject it. Sitting at the back of the court as she did for the rest of the trial (through 6 days of complex and conflicting medical evidence) I noted that to all outward appearances she remained engaged. She was listening, taking notes and passing on instructions. That is not to say there were no signs of fatigue, but so there were from several others in the courtroom. For example, Professor Morris (a new grandfather) appeared to be having trouble staying awake when he was in court (he did so with apparent extreme signs of forced concentration) and I infer from his ponderous and sometimes rambling answers when giving evidence (for which he apologised) that he was having trouble focusing on the job in hand but he made heroic and successful efforts to do so as one would expect from a professional witness of his undoubted standing.

   2. I found the claimant’s evidence to be unsettling (due largely to its internal inconsistencies and inconsistency with documents together with the mismatch between her reporting of enduring symptoms and her actual presentation in court) and ultimately profoundly unsatisfactory. The claimant’s honesty has not been impugned and I do not conclude that she is lying or malingering. The position is considerably more complicated and nuanced than that. It is her accuracy and reliability as a witness that have been subject to serious challenge (as the Medical Issues document and Counter Schedule foreshadow). I do not conclude that there has been any effort on the part of the defendant to challenge the claimant’s case by innuendo or insinuation. In putting the claimant to proof it has been clear on all sides that the claimant’s reliability and accuracy are what are at stake. I did not, when her evidence is looked at as a whole, find her to be an accurate or reliable witness and have been constrained to conclude that she no longer reliably knows herself what the accurate description of events and the consequences of this accident is. She cannot articulate (whether herself or by reference to other evidence) a workable timeline between the accident and the enduring cognitive and behavioural symptoms about which she later complained and in some respects, still complains.

Surveillance

1. 1. A further illustration of why I found the claimant to be such an unsatisfactory witness comes from the questioning about the video surveillance evidence. She was only asked about a small selection of “out-takes” (5 in number) and the surveillance itself although covering parts of 16 separate days can’t pretend to provide anything other than snapshots of her activities. At first, I was inclined to the view that this material was unlikely to be helpful. There are occasions on the more comprehensive material that was not shown in court, in which the claimant can be seen acting in a way that could be taken as being consistent to a modest degree with the cluster of medical problems about which she complains. What she was asked about in court related to two shopping trips to supermarkets with her family and three occasions when she is recorded working in her tea shop at the end of the day. Viewing the video extracts themselves (particularly when taken in the context of the whole of the surveillance) the claimant appears to be functioning normally for the most part, without any obvious difficulty related to her balance or any orthopaedic limitations. However, the claimant could have better days or may try and make the most of her (she would say) intermittently but seriously limited abilities. None of this would necessarily show on the surveillance evidence.

   2. It was not the content of the video material that I found of particular interest but the claimant’s response to it. I can only conclude from the claimant’s comments about what she was shown on the screen (and in fact she offered many of her explanations without being asked specific questions), that she is deluding herself about what can be seen. She pointed to incidents of her using a supermarket trolley as a stabiliser (when she clearly was not); she explained trivial instances of standing back from shelves as examples of her coping with dizziness (when they were obviously nothing of the sort); she describes two instances of herself and her husband manhandling Henry into the back of a car as illustrative of her inability to cope on her own, when all the video shows is parents of a toddler with large amounts of shopping coping together in the way that innumerable couples do in supermarket car parks every day of the week. The excerpts shown of her working at closing time at the tea shop show she is clearing up at the end of a working day, lifting furniture and “A” boards (sometimes one-handed) and on one occasion with Henry carried on her hip. I would not have drawn any adverse conclusions about the claimant’s reliability from such short extracts on isolated days but for the fact that the claimant took such unnecessary and unconvincing efforts to explain them away. At one point I got the impression (and this was underpinned by passing remarks of Dr. Savundra during his evidence) that it was claimant’s case (although not said by her) that carrying a child whilst manhandling shop furniture was a positive thing in that the child would act as a counter-weight to help the claimant maintain her balance. In my judgment the carrying of the baby is not consistent with the claimant’s evidence that there was an occasion when her balance problems caused her to fall whilst she was carrying Henry. Had she done so, I cannot accept that she would have taken any risks in this regard unless her balance problems had completely resolved. The reality is that what the claimant tried to explain away on the videos, simply show ordinary work-related activities being undertaken in a routine manner. The claimant’s insistence to the contrary struck me as her protesting too much and looking for problems on the videos where there were none to be found. The impressions of the substance of surveillance evidence of Dr. Heaney, Mr. Radford and Dr. Vanniasegaram are consistent with my own conclusion.

   3. There are occasions when the claimant is under surveillance, but does not leave her home or does not venture out until later in the day. This is at least as consistent with her childcare responsibilities as it is with her evidence that these occasions are illustrative of her being tired in the mornings. I reject her explanation. The obvious effort and levels of concentration required to complete her comprehensive review of the surveillance evidence in her witness statement of 21 March 2018 speak eloquently of the claimant’s capabilities, not least of all her memory and concentration.

Peter Siegel

1. 1. On the 5 March 2013, about 3 weeks before the accident, the claimant made a witness statement in another case; that of Peter Siegel. Mr. Siegel had been a reasonably close family friend since about 2000 with greater and lesser periods of contact between then and 2009. Mr. Siegel was injured in a rear-end collision in 2009 as a result of which he suffered DAI. The purpose of the claimant’s evidence, and that of her husband, when they attended the Siegel trial in November 2014, was to speak of the effects of the accident on him. The claimant knew Mr. Siegel well enough to comment on his short-term memory problems, fatigue, confusion, difficulty in acquiring new information and increased social insensitivity. Mr. Siegel was successful and recovered in excess of £1.5miliion in damages. The coincidence of the accidents and some of the consequences between the two cases of these friends is obvious, but not necessarily sinister.

   2. Mr. Siegel was contacted by telephone by the claimant’s husband on the evening of her accident (a measure of how close the families were) and he visited the claimant not long afterwards. The two kept regularly in touch up to the date of the Siegel trial and beyond. The claimant says she recalls little if anything of this and says in her oral evidence that she did not discuss the two accidents or her injuries or symptoms with Mr. Siegel. Of subsequent meetings she said: “We did not really talk about the similarities in the cases”. “I did not think of it again to be honest,” she said in the context of her own symptoms as against those she had described in Mr. Siegel. The penny, she said, never dropped, even in November 2014 when she gave evidence at the Siegel trial. She was blaming her own difficulties on a stubborn whiplash injury. Mr. Siegel never pointed out to her or Trevor any similarities and never suggested that the claimant should seek more than orthopaedic medical advice about them. So, the claimant says, she was not at any advantage in being able to make a connection between her symptoms the accident on 29 March 2013.

   3. Whatever one might make of this evidence it sits uncomfortably with the answers to Part 18 Questions provided by the claimant on 17 November 2017 in which quite the opposite impression is created. The answers suggest that there had been conversations about their shared symptoms and that it was indeed Mr. Siegel who recommended the claimant instruct a specialist solicitor. If this is supposed to be the correct version of their discussions and it is intended to convey the impression that the penny only dropped 18 months or thereabouts after the claimant’s March 2013 accident, I reject it as improbable.

   4. Rear-end collisions are not uncommon. DAI may be controversial, particularly in a litigation context, as Mr. Grant puts it. The emergence of two such cases involving friends may be no more than an example of DAI being more recognised now, where it would previously have been overlooked. Medical knowledge has advanced. Looked at in this way the emergence of two similar DAI cases involving friends involved in separate rear-end collisions may not be all that significant. What, in my judgment, is significant, is that neither the claimant nor her husband (save for one passing reference to a ‘phone call in a witness statement) volunteered any background information about the Siegel case in the several witness statements prepared for the main action in this case. I find it inherently implausible that there should have been no discussion between friends and their families about the similarity of the cases or the overlapping clusters of symptoms in each case. I find it even more implausible that this overlap did not cause either the claimant or her husband to consider a link between the claimant’s accident and her symptoms as it had been in Mr. Siegel’s case. Had there been a close temporal connection between the March 2013 accident and claimant’s continuing non-orthopaedic symptoms there would have been discussions and possible links drawn, and the penny would have dropped long before the claimant finished her evidence in the Siegel case on 14 November 2014. This is particularly so given that the claimant’s pain diary was underway and had been since June 2014 on the recommendation of the physiotherapist, Mr. Patel, in circumstances where treatment had been of limited benefit. The Answers to the Part 18 Request is a more realistic version of likely events, but had to be pressed out of the claimant in that way, and is not consistent with the thrust of this strand of the claimant’s oral evidence. Both the claimant’s evidence and Trevor’s lacked transparency and candour on this aspect of the case, and I considered them to be evasive about the real levels of contact and discussion with Mr. Siegel.

THE IMPACT OF THE CLAIMANT’S CREDIBILITY ON THE CLAIMANT’S MEDICAL EVIDENCE

The claimant’s medical case…

1. 1. The claimant’s case is put substantially in this way. First, it is recognised that her own reliability and accuracy are vital and I am invited to treat her not only as an honest witness free of psychological pathology, but as someone who is accurate in the details of her evidence; and reliable. This approach to her evidence is particularly important in what the claimant reports of her history and symptoms to the medical experts in the context of retrospective PTA [“rPTA”] assessments. Secondly, on the assumption that she is an accurate and reliable historian, the medical conclusion arrived at by a process of elimination to the effect that DAI is a plausible explanation for her enduring problems, is one that becomes more probable than not given the absence of any psychiatric or psychological causes or an identified alternative organic cause of her enduring symptoms. If by this process her current condition is likely to be the result of accident-related brain injury, the many problems with her evidence in other areas of the case are more likely than not explained by the impact on her focus, organisational abilities, concentration and memory by a brain injury, albeit coupled with a high-functioning desire to disguise these consequences from the outside world. I do not accept this.

   2. I have so far dealt with the contemporaneous medical records, the claimant’s activities in the summer and autumn of 2013 and the evidence about the claimant’s change of career. In none of these areas of the evidence is the claimant’s case supported by the documents. In several important respects it is contradicted by the documents. Nor does her evidence have any substantial corroboration from the all too general evidence of her family, colleagues and friends. There comes a point where the number of instances where the evidence is either not confirmed by, or is simply contradicted by other evidence, that it is impossible to place any reliance on the claimant’s evidence at all. That point has been reached in this case.

   3. The implications of this on the medical evidence are significant. In brief, the claimant’s case on the expert evidence is that a plausible diagnosis has been identified. What else could be causing her myriad enduring symptoms? No alternative to the claimant’s experts’ hypothesis is forthcoming, so the submission goes, therefore, the only hypothesis provided is likely to be correct. This submission could only be compelling if the claimant’s case did not rely so much on her own accuracy and reliability and if she was an accurate and reliable historian. This is because the medical conclusions reached with regard to a DAI are inextricably linked to rPTA assessments which themselves depend on the claimant’s reliability and accuracy. It does not necessarily follow that the claimant’s reliability in repeating her history to clinicians is as flawed as it is in other aspects of the evidence. Unfortunately, a review of the medical reports and consideration of the expert evidence shows that her reliability is equally flawed. Given that the medical hypothesis supporting the claimant’s claim for damages for a brain injury relies so much on the claimant’s accuracy, I do not accept the hypothesis. It is necessary to look at the expert evidence, and the many inconsistencies it highlights in the claimant’s presentation.

   4. When, as I have, I reject the hypothesis of a DAI and reject the medical evidence called in support of the claimant’s case, I do so largely on the basis of the claimant’s unreliability and her inconsistency, not because (save in one instance) the experts are inadequate or the hypothesis is medically unsupportable or implausible as a diagnosis in an appropriate case. However, this action is not all about the medical evidence.

   5. It is convenient at this point to deal with a strange section of the evidence touching on the claimant’s post traumatic amnesia. On discharge from the hospital it seems the claimant and her husband bumped into an old friend of his, Stephen Yates. At the time of signing her statement on 18 March 2016 the claimant maintains that she still had no recall of this event or who the person was. Trevor was keeping the name a secret as some sort of private game. This incident was on 29 March 2013, at a time when the claimant and Trevor say they were unaware of things like post traumatic amnesia and, therefore, unlikely that they were thinking about the difference between recall and knowledge which would become so important later on. Why Trevor would withhold the name of his old friend in this way, and for so long, I cannot begin to imagine. The episode is supposed to illustrate a distinctive incident which cannot be cued in the claimant’s memory. I can only conclude, as is submitted on behalf of the defendant, that this entire episode is contrived and unconvincing. I put this evidence, such as it was, to one side.

   6. The claimant corrected one aspect of her recall. She said in her first statement that she had some patchy memories of attending a Biffy Clyro concert on Easter Monday 2013. In a later statement she corrected this. She did not recall the concert, but because she knew she had tickets she had assumed in her earlier statement that she went. This too is odd. At the time she signed her first statement the claimant was already familiar with the important distinction between recall and knowledge. I can’t say what contorted thought processes led to the original error, if error it was, or what caused the correction. The same applies to the change in evidence in the later statement about what was recalled about the claimant and her dealings with the defendant at the scene of the accident. It is all very unsatisfactory and unconvincing…

DAI – Medical Introduction

1. 1. The status, independence and objectivity of Ms. Levett (instructed to assist the court by the claimant as a Behavioural Psychologist) has, unfortunately, been another issue in this trial. Not for the first time. It is submitted that for a variety of reasons she has failed to comply with her overriding duty to the Court. She has acted both as an expert witness and as a treating psychologist. She conducted the first rPTA assessment on the claimant 28 months post-accident. On behalf of the claimant it is submitted that the defendant’s personal attack on Ms. Levett regarding her objectivity and independence is precisely the sort of attack to which she has unsuccessfully been subject in previous cases and has little, if anything, to do with the substance of her methodology or her professional opinions. Such attacks failed then and should fail now. Given Ms. Levett’s special interest and experience in cases such as this and her robust methodology, her opinions are valuable, objective, independent and reliable. My attention has been drawn to a number of previous judgments in cases where Ms. Levett’s evidence was crucial and accepted; most recently Siegel. If only it was as simple as that.

   2. Wilkie J. summaries the circumstances giving rise to Ms. Levett’s then ambiguous professional status and in noting that she was then, as now, both expert and treating psychologist, he recognises that Ms. Levett’s evidence needed to be treated with caution. Nonetheless, he concluded that there was no evidence to suggest in that case that Ms. Levett was anything other than objective in her assessments and in the light of the consistency between her opinion and other experts he was able to rely on it.

   3. It is pointed out on behalf of the defendant that things have moved on since 2014. Attempts by Ms. Levett to appeal to the Court of Appeal against the Order (confirmed after a re-hearing by Haddon-Cave J) striking her name off the Health and Care Professions [“HCPC”] register have failed. L v The Health and Care Professions Council [2014] EWHC 994 (Admin). Since then Ms. Levett’s membership of the British Psychological Society [“BPS”] has been terminated (or expired according to Ms. Levett). She continues to act as both expert and treating psychologist despite strong recommendation to its members by the BPS that such a dual role is usually unacceptable (although I do not construe this as an absolute prohibition). It is submitted that the potential conflict of interest that arises is particularly serious because Ms. Levett was struck off the HCPC register for failing to maintain proper boundaries between herself and a vulnerable patient. In other words, there is nothing ambiguous about Ms. Levett’s professional status now.

   4. An Application by the defendant for an Order to withdraw permission for Ms. Levett to provide expert opinion evidence at a case management stage of these proceedings in early 2018, was unsuccessful. The issues regarding her status and objectivity are matters of weight to be considered along with all the other issues in this action.

   5. It is not unfair to observe that my impression of Ms. Levett’s response in her oral evidence to all this, is that she feels targeted and beleaguered by what she perceives to be personal and irrelevant attacks by insurers because she is the expert par excellence in the field of identifying and diagnosing brain injuries (e.g. DAI) and treating the psychological consequences of apparently minor road traffic collisions. This is due to her careful, structured functional analysis of a patient’s presentation, not least of all in the area of rPTA. If she feels beleaguered, she has nobody to blame but herself.

   6. In some ways Ms. Levett’s evidence on the disciplinary front echoed that of the claimant’s career change evidence, particularly when it came to explaining away potentially difficult documents and events. She describes herself in her CV as “Chartered Psychologist 1986”. She accepts that she is not entitled to use the designation “Chartered” after her problems with the BPS but asserts that the information on her CV is no more than a reflection of the fact that in 1986 she was first “Chartered”. I do not accept that this is what she intended. In my judgment her CV is clearly an attempt to create the impression that she has been a Chartered Psychologist since 1986 and remains so and remains in good standing with the BPS. When questioned pursuant to CPR 35 about her professional difficulties with HCPC and BPS, Ms. Levett was less than forthcoming about the details. Her explanations regarding dealings with the BPS including her expulsion or alternatively the expiry of her membership, her oral evidence were positively Byzantine. I asked her myself whether it would not have been better to have been totally “up-front” about her dealings with professional bodies and the status of her appeal against the Order of Haddon-Cave J (permission to further appeal having twice been refused). Her response was to the effect that she relied on legal advice and could not see how any of these matters impinged on her experience and expertise in this field or on her successful treatment of the claimant’s psychological symptoms.

   7. Whatever Ms. Levett considers to be the relevance of her dealings in recent years with the HCPC, the BPS and the courts with regard to her professional qualifications when considered alongside the work she has actually done in brain injury cases (both as expert and treating psychologist), I concluded that she lacked (at least on this occasion) the transparency the Court is entitled to expect of an expert witness. She was evasive and in my judgment lacked any insight into why any of this mattered (lack of insight in a different context having been a criticism of her in the statutory appeal proceedings before Haddon-Cave J). This is extremely disappointing, not least of all because it is not just the fact that Ms. Levett has had these disciplinary issues, but that she has pointlessly been less than open about them. For the reasons that he gave, Wilkie J. in Siegelfelt that Ms. Levett’s evidence had to be treated with caution. In the light of what has happened since then, and her evidence about it in these proceedings, it is my judgment that her evidence must be treated with suspicion. I used the word “disappointing” because it may well be that none of Ms. Levett’s professional difficulties have much to do with her experience and knowledge of brain injury cases or rPTA assessment. Her methodology is not criticised by other experts. The first rPTA assessment was carried out by her and it might, therefore, have carried some weight had it come from a transparently objective expert. It is equally disappointing because Ms. Levett’s treatment of the claimant’s psychological problems after the accident has not been impugned.

   8. I am not satisfied that Ms. Levett is sufficiently independent and objective as an expert witness to be of any real assistance particularly with regard to her rPTA assessment. I consider there is a real possibility that she has allowed her specialist interest in this type of case to stray into advocacy, not so much on behalf of the claimant as an individual patient, but as an advocate for the identification of DAI brain injury in cases where previously none would have been found, including a case such as this where there is such a level of disagreement between the experts across all relevant disciplines. Ms. Levett’s rPTA conclusions and her expert opinion are doubtful in my judgment. The results are doubtful on two fronts. First because of Ms. Levett’s lack of independence and objectivity and secondly because she was taking a detailed history from an unreliable source (the claimant). As a result her rPTA assessment cannot realistically be considered as supportive of a brain injury diagnosis. I am not satisfied that the information she has gleaned from the claimant is accurate or reliable and I am not satisfied that Ms. Levett has taken all objectively relevant factors into consideration when conducting her rPTA assessment or when reaching her conclusions. In other circumstances it might have been of little concern that Ms. Levett was unable to recall herself (directly or from notes) how many assessment sessions she had with the claimant (was it 2 or 3 in July or August 2015?) and has not checked that the date of the accident given in her Report at one point is wrong: “[The] accident happened after lunch on the 5 November 2013″. This is careless given that the central purpose of the Report is to record the claimant’s history. Ms. Levett says this about the information with which she was provided to reach her conclusions: “Information was subsequently updated, feedback gathered and opinion reviewed during regular weekly treatment sessions starting in September 2015”.

   9. This highlights what I consider to be another serious problem: the troublesome overlap between Ms. Levett’s function as an expert witness and that as a treating specialist. In all there were about 8 hours of Assessment and 22 of treatment (though more was charged for due to the claimant cancelling some appointments). The treatment was concluded several months before the Report of 9 July was written. I can only infer from this that Ms. Levett obtained relevant information and feedback from the treatment sessions in addition to her August 2015 assessment sessions, but it is not possible to work out with any precision what information derived from treatment has informed the expert opinion Ms. Levett has provided to the court. I cannot dispel a nagging concern that in adopting a dual function, Ms. Levett has allowed herself too readily to accept at face value information provided by an unreliable historian (the claimant). I was surprised to learn that it was not routine for rPTA assessments to be recorded in 2015-2016. Dr. Allder is trialling such a process now. The transcripts of recordings of medical expert appointments that form part of the evidence in this case were taken by the claimant on her smart ‘phone. There is no recording of any part of the Levett assessments. Perhaps had recordings existed, some of my concerns about Ms. Levett’s objectivity would have been allayed. How much of her rPTA assessment was the result of leading or suggestive questions is impossible to know. I was also satisfied that Ms. Levett’s evidence to the effect that she “would have known” when the claimant was referred to her that she had been a witness in the Siegel case and that “I think Mr. Siegel told me he was concerned about someone he knew ‘had it’ [DAI] verged on the evasive. Whether this was designed to protect the claimant from possible adverse inferences or to put distance between the Siegel case and this one, I can’t say; but her evidence on this was unsatisfactory and I find, lacked candour.

   10. Dr. Savundra (audio-vestibular specialist) was asked about dual roles as expert and treating specialist. He said:

“I do not treat as an expert. Being an expert rules me out as a treating physician. It can be very complex to do both and it is not an acceptable position to be in”.

Professor Morris (neuropsychologist), when asked about it, appeared to be visibly appalled at the very idea of adopting a dual role, but was confident that the situation would not arise for him and he could see no reason for his ever departing from the guidance issued by the BPS.

1. 1. My reasons for concluding that Ms. Levett’s evidence lacked the necessary degree of objectivity and independence also include the following:

120.1 Ms. Levett alone among the experts identifies a period of retrograde amnesia. She reports that the claimant did not recall driving home on the day before the accident in her new car, what she did on that evening, waking up on the 29 March or any of her activities on the morning of the accident. However, the claimant told Dr. Allder that she had “… a very good memory of all of the details up to the accident.” Retrograde amnesia is not a prerequisite of DAI but this highlights an important discrepancy in the claimant’s recollection given separately to two different clinicians and is concerning when it comes to consider her reliability as a historian. Ms. Levett’s functional analysis did not indicate that there was any cause to query the claimant’s history in this regard. It is likely that Ms. Levett was over-eager to ascribe to the claimant’s history of the day before a significance it did not deserve. She would not have had Dr. Allder’s version of events when she wrote her reports but I did not detect any sign on the part of Ms. Levett that her conclusion might even be worth revisiting given the obviousness of the inconsistency once it emerged from totality of the evidence.

120.2 There are other inconsistencies that emerge from the various histories taken from the claimant by other experts. None of these different versions appeared to give Ms. Levett any pause for thought before or during the trial, so confident was she that her rPTA methodology was unimpeachable (or nearly so). I find that Ms. Levett had closed her mind to:

(1) the potential importance of inconsistencies in the claimant’s history and reporting of symptoms;

(2) the need for reconsideration of her opinion in the context of an analysis of the comparative importance of the inconsistencies that there were;

(3) the need for a reflective re-evaluation of the claimant’s history as given to Ms. Levett in the light of all the factual and expert evidence including these inconsistencies….

1. 1. At several points the claimant’s case seems to be facing both ways. On the one hand it is submitted on the claimant’s behalf, that the factual evidence demonstrates clearly a constellation of behavioural changes including those relevant to memory (e.g. the evidence of her father). On the other hand, Professor Morris (for one) says that the claimant may be able to present an appearance of normal interaction with the outside world but her compromised brain function is not consolidating memory (this is consistent with traumatic brain injury but also with epilepsy, he says). The factual statements, it is submitted, disclose material illustrating cognitive changes since the accident, but any failure to display the consequences of these to friends and family and the apparent ability to return to work at school may be explained by the frontal lobe paradox. This may also explain the good test results obtained by the claimant on WSM-IV or the alternatives deployed by Dr. McCulloch for executive function: problem solving, planning and multi-tasking in which Professor Morris accepts the claimant did “relatively well”. He said a patient can do the tests well but function may be poor in daily life.

   2. There were several points during the trial when it seemed that the claimant was in an unassailable position; if she did poorly (in tests or evidence) it was indicative of a brain injury and if she did well (in any context) it was due to the frontal lobe paradox or “buffering”…

THE CARE REPORT

Care Needs Assessment & Costing (Kathy Kirby^[12])

1. 1. I have already made reference to some parts of Ms. Kirby’s report in the context of inconsistent or worsening symptom complaints by the claimant. The purpose of Ms. Kirby’s evidence was to identify the likely level of care and assistance the claimant had required and would need in the future, and to cost that care, on the assumption that she had suffered a severe brain injury.

      1. On my findings it is only the past care element that calls for consideration. I am asked to draw inferences in the claimant’s favour on the basis that the defendant did not serve the Report they obtained from another expert in this area. I decline this invitation. I am satisfied that some additional domestic care and assistance would have been offered due to the whiplash and psychological sequelae of the accident. However, whatever the extent of the care needed, I find, not unusually, that the Care Assessment Report is really nothing more than guesswork when it comes to assessing the hours given in gratuitous care. There is little evidence as to what was actually done by way of care, by whom and when. Given that Trevor undertook much of this family’s domestic work before the accident, I find that 5 hours a day for 10 days followed by 3½ hours for a further month, and thereafter 1 hour per day are nothing more than figures plucked from thin air. The same applies to the imaginative approach taken to the care and assistance needed whilst the claimant is preoccupied with running and ultimately closing down her failing business. I don’t doubt Ms. Kirby’s care experience, nor her long experience of writing care reports, neither is there any room to question the hourly rates but I don’t find any reasonable support for the hours allocated to this aspect of the claim in the factual evidence and I did not find Ms. Kirby’s evidence threw any light on this.

   2. The accrued gratuitous care aspect of the claim is inevitably impressionistic in the absence of a time and motion study; and impressionistically is how I intend to approach the relevant award.

   3. Were the question to arise, I don’t find the figures for future care and assistance any more scientific than those for past care. Occupational therapy would not be necessary for a woman in the very top range of intellectual functioning even after the accident, and the proposal for a Case Manager is just as unconvincing, especially where the duties described are mostly bureaucratic and in my judgment, frankly vacuous. Even if it were to be found that a brain injury had been sustained it could be no more than a DAI with relatively mild enduring consequences and would not justify the therapies or professional intervention that Ms. Kirby specifies. In fairness to Ms. Kirby I daresay she was instructed on a worst case scenario and has estimated the hours required and applied costings accordingly.

   4. A substantial part of the claim relates to the risk attendant on the claimant developing dementia in old age. The only evidence about this is from Dr. Allder. A patient with a DAI is at greater risk of suffering dementia than someone in the general population sharing the same characteristics without DAI. The risks advised in Dr. Allder’s opinion are put into figures with the help of Ms. Kirby and find their way into the claimant’s Schedule. The claim amounts to very nearly £1m on the assumption that there is a significant risk that by the time the claimant is 75 she will need 24 hour care.

   5. This aspect of the case was not explored in any great detail. No doubt the claimant would say that is because Dr. Allder’s expert opinion was not challenged on this issue.

   6. I am not satisfied that the evidence produced has been sufficient to prove even on the balance of probabilities that there is such an increased chance of any dementia, being of a type, degree or with symptoms of the sort that would require the high levels of intervention foreshadowed in the claimant’s schedule of loss (even on the loss of chance basis put forward). In this part of the evidence there were far too many medical loose ends and unanswered questions. This aspect of the claim is speculative.

THE JUDGE’S CONCLUSIONS

Conclusions

1. 1. I reach the following conclusions.

   2. I am satisfied, it being admitted, that the index accident was caused by the negligence of the defendant.

   3. I am satisfied on the balance of probabilities that the claimant sustained a whiplash-type injury of some severity in the accident, with clicking in the neck (now occasional) together with an injury to her left thumb and hand. There were also minor seat-belt and soft tissue and lower back problems that were troublesome in the early weeks after the accident.

   4. I am also satisfied on the balance of probabilities that headaches were a by-product of the whiplash injuries and that whilst headaches attributable to the accident have shown improvement in line with orthopaedic expectations (though proved more stubborn than was hoped) she remains more susceptible to headaches (occasionally severe) than she was before the accident.

   5. I infer that due to the orthopaedic injuries and the resulting pain, in conjunction with the negative impact this would have had on her mobility and general feelings of well-being in the short term, that she is likely to have had occasional episodes of dizziness (not intrusive or frequent enough to be worth reporting to her doctor) and that the constellation of these orthopaedic injuries when taken in conjunction with aspects of PTSD, OCD and anxiety will have caused her to be socially more subdued and in turn “snappy” (particularly at home) as well as giving the appearance from time to time of being “a bit” less well organised and “bubbly” than people were accustomed to.

   6. I am satisfied on the balance of probabilities that she suffered some sequelae consistent with aspects of PTSD (but not PTSD) and OCD. There was also a period of situational (particularly travel) anxiety. These psychological symptoms were successfully treated and in full remission by the end of January 2016.

   7. I am also satisfied that, in combination, the orthopaedic and psychological injuries would have caused a degree of fatigue and loss of energy of the sort the claimant was unused to. This, I infer, would have been more troublesome than it should have been given the long delay in her getting first, physiotherapy support and secondly, psychological treatment (CBT). Anything of this nature attributable to the accident was, on balance, likely to have resolved along with the psychological symptoms.

   8. I am satisfied on the balance of probabilities that the claimant continues to be affected by the neck injury in particular, with some discomfort at the extremes of movement but that between October 2013 and the end of 2015 the orthopaedic consequences of the accident had gradually resolved to the sort of nuisance level that is unfortunately likely to endure; a possibility recognised by Mr. Radford and foreshadowed by Dr. O’Connor.

   9. It follows from the above that the injuries are significantly more serious than is submitted on behalf of the defendant.

   10. I am satisfied on the balance of probabilities that the claimant’s change of career and her abandonment of teaching would have happened by the end of 2014 irrespective of the accident and was not caused by the accident; neither was the accident a materially contributing factor in her decision. I am satisfied that this is the case whether or not any brain injury were to be established. No claim for loss of teaching earnings or pension, therefore, arises.

   11. I am satisfied on the balance of probabilities that such enduring cognitive and behavioural problems as the claimant continues to experience were not caused or materially contributed to by the accident.

   12. I am satisfied on the balance of probabilities that the claimant did not suffer a brain injury, and in particular did not suffer from PTA, or a DAI as a result of the accident.

   13. It has not been proved on the balance of probabilities to my satisfaction that the claimant has a brain injury and, in particular, I am not satisfied that it has been proved that she has a DAI.

   14. In the light of the above conclusions there is no justification for any damages based on the alleged increased risk of dementia or for any continuing care, case management, therapies or equipment.

   15. I am not satisfied that the claimant has enduring cognitive or behavioural symptoms, or alternatively, if she does, the confusion in and unreliability of her evidence makes it impossible to assess their scope and effect save that they are considerably less serious than, for example, Ms. Levett has reported.

   16. I am satisfied on the balance of probabilities that the claimant is not dishonest, nor is she malingering or consciously exaggerating, but I am equally satisfied that, on balance, that she is unreliable, inaccurate and very confused as a historian with regard to her career, the onset of her allegedly enduring symptoms, the development of such symptoms, the continuity of such symptoms and the trajectory of such enduring symptoms, as well as the description and effect of them on her everyday life and work; specifically in the provision of post traumatic amnesia assessments, but also generally.

       1. On the basis of the claimant’s confusion, inaccuracy and unreliability I am not able to identify with any precision what few, if any, cognitive and behavioural symptoms remain, neither does the evidence reveal a specific, alternative cause of such problems as she says she now has.

   17. Even if there had been a proved causal connection between the accident and the claimant’s decision to leave teaching, any resulting loss of earnings and pension would have to take into account that the chance of the claimant achieving deputy headship (or senior SEN role at a broadly equivalent salary) after 5 years of the accident date could not have been more than 70% and the prospects of headship after 1o years from the accident could not realistically have been greater than 50%. These percentages more realistically reflect the many potential intervening vicissitudes of family and professional life and given that she was determined to set up a tea room in any event, on this counter-factual basis, I conclude she would more likely than not have done this by the time she was 50 even if she had remained in teaching.

   18. I am not satisfied, even if a DAI had been caused by the accident, that the risk of dementia to the extent justifying this substantial part of claim has been proved.

   19. Accordingly, there must be judgment for the claimant for a sum assessed as appropriate to the findings set out below.