Williams v Jervis (Lex Komatsu)

Shortly before 1pm on Tuesday 2^nd July 2002 a road traffic accident occurred on the Wandsworth Road, London. The claimant, who was driving her Volkswagen Golf motorcar, stopped at a zebra crossing. A Mercedes Vito van owned by Lex Komatsu and driven by their employee Calvin Jervis failed to stop in time and ran into the rear of the claimant’s car.

Miss Williams’ car was beyond economic repair and the defendant’s insurers paid Miss Williams £6800 which was the full pre-accident value of her car. Primary liability is not in issue although the defence allege that Miss Williams was contributorily negligent in that, firstly, the brake lights on her car were not working at the time of the accident with the result that Mr Jervis was deprived of an important means of observing that her vehicle was slowing down; and, secondly, she was using a handheld telephone as she drove which caused her to be distracted and to stop suddenly. These allegations are denied.

Miss Williams claims that, despite the comparatively minor nature of the collision, she has suffered as a consequence of the impact continuing, intrusive and disabling symptoms which have meant that she has not been able to return to her pre-accident employment as a Grade G Nursing Sister in the Intensive Care Unit at St Thomas’s Hospital, London.

Three areas of injury are alleged. Firstly, it is said that Miss Williams suffered a peripheral vestibular lesion in the right ear of which the main consequences are dizziness, loss of balance and fatigue. Secondly, she suffered what is commonly referred to as a whiplash injury which involved damage to the nerve roots or nerve trunks in the left brachial plexus region causing intermittent pins and needles and electric shock type attacks of pain radiating down her left (non-dominant) arm. These symptoms are aggravated by using the arm for lifting or moderately heavy manipulation and by lying on the shoulder. In addition, the claimant experienced for a period exacerbation of a pre-existing underlying mechanical low back condition.

The third area of alleged damage is the most controversial. The claimant alleges that she suffered an injury to her brain which has left her with impaired cognitive function. She complains of mental fatigue, ballistic anger, impaired short term memory, impaired concentration, impaired ability to multitask, word finding difficulties, reduced alcohol tolerance, noise and bright or flashing light intolerance, disinhibited behaviour, impaired ability to organise and plan, impaired ability to follow conversations, headaches and a degree of personality change. A complaint that she suffered incontinence of urine and faeces as a result of the accident is not persisted in as she now accepts that these symptoms are unrelated to the collision.

The defence case is that the claimant is deliberately exaggerating her symptoms in a determined attempt to secure her financial future and to avoid returning to her pre-accident work which at the time of the accident was causing her unhappiness. Alternatively, it is contended that the claimant has come to believe her own exaggerated account of her symptomology.

This relatively minor accident has generated an extraordinary amount of paperwork. In addition to reports from accident reconstruction engineers there are medico-legal reports from experts in a range of disciplines some of whom have produced a multiplicity of reports and/or follow up letters. Other documentation relates to the history of the financial provision the claimant made for herself, material relating to the claimant’s employment history and her (sometimes heated) exchanges with the Occupational Health Department of her employers, documents from the Department of Work and Pensions, her General Medical Practitioner’s notes and documentation relating to the large number of doctors who have treated the claimant or to whom she has been referred in the years since the accident. Other medical reports, to which some reference is made in the papers, are from other doctors to whom the claimant has been referred since the accident and whose reports have not been disclosed. This leads to what seems to me to be the inevitable conclusion on the facts of this case, namely, that the reporting doctors do not support the claimant’s case.

In opening this case Mr Grant said that this case had become “high temperature” litigation. That is an apt description. Some doctors instructed on behalf of the defence to report on the claimant have not believed her account of her symptomology on one or other of the bases upon which the defence now put their case. More than one report queries the claimant’s integrity in robust terms. This lack of belief in the claimant’s account of her symptoms has generated an unfortunate response from the claimant who is capable of being confrontational and unpleasant towards those she perceives as being on the other side. Regrettably, this is not the limit of the tensions in the case. Allegations were made at quite an early stage of the case about the way the claimant’s solicitor had taken witness statements. They arose, it seems, from comments made by one of the defendant’s medico-legal experts who had read witness statements filed on behalf of the complainant and who thought they bore a suspicious resemblance to each other. Fortunately, these allegations were not really persisted in at trial. In addition, medico-legal experts on each side of the case have been the subject of questioning about their qualifications to give evidence in this case, their objectivity and even their honesty.

There have also been issues about the production of evidence with experts wanting to amend, or distance themselves from, the content of joint reports; one expert not finding enough common ground with the expert instructed on the other side to justify meeting to produce a joint report; allegation and counter-allegation of late production of evidence, inadequate or late disclosure and late reliance on literature.

The case was set down for trial with an estimate of 7 to 8 days to include a realistic suggestion that 1 – 1.5 days would be required for pre-reading. In the event the case lasted 16days. Even allowing for evidential matters which arose at or immediately before trial, and ignoring the loss of that part of the 12th morning of the case which was taken up by out of court discussions between counsel which resulted in an open (unaccepted) offer of £250.000 to settle the case, it is difficult to see how 7 to 8 days could ever have been a realistic time estimate. This is particularly so when one considers the evidence of the claimant who irrespective of the view one takes about the genuineness of her claimed condition was bound to take a long time in giving evidence. In the event, the claimant was in the witness box for the equivalent of at least three days. The result of the underestimate of the length of the case resulted in the fracturing of the timetable set for this trial so that it was frequently impossible to call witnesses at the time for which they had been warned, and once called, sometimes impossible to complete a witness’ evidence in one sitting causing witnesses to have to return to court on later occasions. This is unsatisfactory for witnesses, advocates and the court and reached its high-water mark in this case when an expert witness was unable to complete her evidence on the day she was called: a date was arranged for her to return to complete her evidence but before the proposed return date she gave birth. The result was that she could not complete her evidence.

Moreover, the fact that this case took so much longer than its estimate also had a knock on effect beyond the case itself. Disruption was caused to the working of other courts and judicial timetables had to be altered to accommodate the over run of this case. It is essential that those who give time estimates for trials ensure that they are as accurate as possible when they are given, that they are kept under review and that any particular relevant features of the case are catered for in the estimate.

It is right, however, to make clear that the way counsel have presented the case before me has in no way contributed to the over run of this case. Without their expertise and focus on the issues the case would have taken longer and I am grateful to them for the thorough, careful and efficient way they have presented their respective cases.

Evidential issues arose even after both parties had closed their cases and filed lengthy closing submissions. On 13^th May 2008, the trial having concluded on 7^th May, the claimant’s solicitor filed an application to adduce further evidence by way of a document the content of which was said to be relevant to the evidence of Miss Levett, a Consultant clinical Psychologist called on behalf of the claimant, who, the application stated, had been “improperly ambushed with paperwork during cross-examination by defendant Counsel Mr Platt”. Mr Platt did not “ambush” Miss Levett. The line of cross-examination to which the application refers was entirely proper and one which had been flagged up from the early stages of the case and one which Miss Levett dealt with. The document in question was available at the time of trial and comes from Miss Levett’s professional body. In the circumstances of this case, I am not prepared to exercise my discretion to admit further evidence at this stage.

The witness PC Tony Wong was one of two police officers who attended the scene of the accident. He asked Miss Williams and Mr Jervis for an account of the incident. Miss Williams said:

“A woman and a child started to cross the zebra crossing and I stopped. A van behind me just collided into the rear of my car.”

PC Wong recorded Miss Williams as being unable to sign the note he made of her account.

Mr Jervis’s account, which Mr Jervis did sign, reads as follows:

“I could see people about to cross. They were not actually on the crossing but the Golf stopped suddenly. I immediately braked as well but hit the back of the car. I cannot remember seeing any brake lights.”

In his witness statement dated 4^th September 2005 Mr Jervis says that when he was driving behind Miss Williams’ car he could see she was using a mobile telephone as she was driving along although in cross-examination he said that he saw that Miss Williams had her hand to her left ear and he assumed that she was using a mobile phone. In his statement he says that he could see that there was no one on the zebra crossing and neither was there anyone on either side of the road waiting to use the crossing. He then noticed that Miss Williams’ car was slowing down although the car did not display any brake lights. He did not know why Miss Williams had stopped. He started to brake and reduced his speed to 10 to 15 mph but although he steered to his offside he could not avoid colliding with the Golf. Had the brake lights on the Golf been working he feels that he would have noticed that the Golf was slowing down earlier and would have been able to avoid the collision. He goes on to say that he spoke to the police officer at the scene and pointed out that both before the collision and at the time of the impact Miss Williams was using a mobile phone and also that there were no brake lights working on the Volkswagen. The officer, however, did not appear to be particularly interested in these facts, according to Mr Jervis.

Police Constable Wong, on the other hand, has no recollection of Mr Jervis mentioning Miss Williams using a mobile phone and had Mr Jervis mentioned it either to him or to his colleague the matter would have been recorded in the accident report book. Similarly, Police Constable Wong says he was not told that there were no brake lights working on the car. The allegation that the brake lights were not working is made in the Defence dated 25^th November 2005 but the allegation of using the mobile phone does not appear in the pleadings until August 2006 when it appears in the Defence by amendment.

Miss Williams said that she had used the car on the previous Sunday and had parked it against a wall at work in such a way that she was able to see from the reflection of the brake lights on the wall that they were working. She did not use the car on the Monday. Moreover, she gave evidence that she does not use a mobile phone in the car and that at the time of the accident her mobile phone was in her handbag.

What Mr Jervis says in evidence is materially inconsistent with what he told PC Wong at the time of the accident and I find his evidence about the use of a phone and the brake lights unsatisfactory. While I have no difficulty in accepting that Mr Jervis did not see the brake lights on Miss Williams’ car (either because he was distracted or because by the time he saw her car it was stationary and her foot was no longer on the foot brake) I reject his evidence that the brake lights were not working and I also reject his evidence that Miss Williams was using a mobile phone immediately prior to and at the time of the accident. Accordingly, I find that there is no satisfactory evidence of contributory negligence and that the conduct of Miss Williams did not play any part in the causation of this accident.

The violence with which the Mercedes van struck the rear of Miss Williams’ car is an issue in this case. What degree of force would be required before a mechanism for injury could be triggered? Could what appears to be a minor impact cause the disabling symptomology complained of? Both sides have engaged accident reconstruction experts to consider the circumstances of the accident and in particular the displacement or movement the collision would have caused Miss Williams. Mr Henderson reported on behalf of the claimant. He has a particular interest in low velocity impacts and has carried out research into the effects of such impacts on vehicles and their occupants. He has written and published a number of papers on the topic. Mr Marshall has reported on behalf of the defence. There is a significant measure of agreement between the experts.

Miss Williams’ description of the accident is set out in her witness statement of 30^th October 2005. Having stopped at the zebra crossing to allow an elderly lady and a child to cross the road Miss Williams says:

“I kept my eye on the child just to make sure that he did not run back across the road and I then heard a screech of brakes. This is the last memory I have prior to the collision and my very next memory is of feeling dazed and looking at the pavement. Whilst I have no memory of what must have been a huge collision, or of being thrown forwards, my vehicle was actually catapulted 20 feet down the road and had been rotated through 90 degrees such that I had stopped across both lanes of traffic. The garage mechanic who recovered my vehicle told me that it had been propelled 20 feet the other side of the crossing. ”

The claimant says she was looking to the right at the time of the impact towards the child who had crossed the road. I find, in the light of other evidence to which I shall refer later, that her head must have been turned somewhat to the right to watch the child. It was, she says, her assumption that the car turned 90 degrees because she ended up looking at the pavement but she does not know whether it was her head that rotated or the car. After the collision, Miss Williams crawled across the front passenger seat to get out of her car, presumably because the driver’s door was jammed. She later recalls Mr Jervis asking her to move her car but she could not start it. Some time after the accident she went to the garage to which her car had been taken and says that her car was unrecognisable. The roof “had caved in, none of the doors fitted and were held together by straps”.

Mr Jervis’s account is set out in his witness statement of 4^th September 2005. He says that following the collision “the Golf was pushed forward slightly, a matter of a foot in distance, at most. The car was still short of the pedestrian crossing.”

Mr Jervis later moved his van and parked it at the side of the road. He has no recollection of Miss Williams moving her car before the police and ambulance arrived. PC Wong arrived 16 minutes after the accident was reported by Miss Williams and his statement made at the time in the accident report book describes Miss Williams’ car as being “about 5 yards away from the zebra crossing”. By this he meant 5 yards beyond the crossing in the direction in which Miss Williams was travelling. PC Wong, however, records Miss Williams as answering “yes, slightly” when he asked her whether her car had been moved since the accident. PC Wong’s recollection, as set out in a statement he made to the defence solicitors in June 2006 is that the Golf appeared to have been parked about 5 yards beyond the zebra crossing. As he believed both cars had been moved after the collision he did not produce a sketch plan of the accident scene.

Messrs Henderson and Marshall have not had the opportunity of examining either vehicle and in order to assess the damage to each vehicle they have had to rely on documents produced by others immediately following the accident. An engineer named Peter Knappett inspected Miss Williams’ car for insurance purposes on 17^th July 2002. His description of the damage to the vehicle is “hard rear impact, roof badly buckled, boot floor buckled, rear door apertures disturbed with opening of door gaps on nearside. Likely to find additional damage if repairs undertaken”. In order to assess damage to the Mercedes van the experts have had to consider an invoice from the company which carried out repairs to the vehicle and which sets out the parts which required replacement. They included the bonnet, left hand front wing, front grille, front grille rail, left hand headlight, left hand indicator, front bumper, front bumper carrier, left headlight panel and air conditioning radiator. The need to replace these items is consistent with Mr Jervis’s description of his steering to the right.

At a reconstruction of the accident carried out on 13^th January 2007 at which Mr Marshall and Mr Jervis were present, photographs were taken showing Mr Jervis’s recollection of the way the vehicles were aligned after the accident. They show the vehicles some 10 inches apart with an overlap between the vehicles which Mr Marshall estimated to be about 30%. Mr Henderson agrees that the areas of damage indicate a collision which was slightly offset and states that the contact between the vehicles was either aligned but overlapping or at a slight angle. It was his view that the force vector would have passed through the car at an angle and he expected that the lateral movement would be greater than if it had gone through the centre of the car. He doubts whether the impact in this case would have rotated the Golf 90 degrees.

It was Mr Henderson’s evidence, and on these matters Mr Marshall did not dissent, that the distance the struck car travels forwards as a result of the collision is largely irrelevant when considering the effect of the impact on the car’s occupant. It is the speed change caused to the front car by the impact which is critical. The acceleration of the front car is at its peak in the first 5^th of a second of a collision and it is the amount of acceleration in that time which determines whether or not injuries occur (other than direct contact injury). The energy which a body possesses due to its movement (kinetic energy) is squared when its speed doubles so that a car travelling at 10 miles per hour has four times the kinetic energy of a car travelling at 5 miles per hour. Where vehicles are offset at the point of impact, the momentum exchange is less but even with an overlap of 30% momentum exchange is conserved at 94%.

The experts, therefore, agree that the amount of occupant movement in a motorcar collision is related to the impact speed, the angle at which the vehicles involved come together and the resulting magnitude and direction of the impact forces. The greater the closing speed the greater will be the acceleration applied to the occupant of a vehicle. Messrs Henderson and Marshall agree that at a speed change of 3 miles per hour it is unlikely that any mechanism for injury would have been triggered. Mr Henderson’s evidence was that defining a speed – a threshold speed – above which injury occurs and below which it does not is difficult. However, in the light of research the generally argued threshold is a speed change of 5 miles per hour. At that speed change or above the occupant of a struck car is at greater risk of displacement and consequential injury; whereas, at a lower speed change the risk is reduced.

In order to give his opinion on the speed change in this case Mr Henderson has relied upon his research and crash testing, examples of which were shown in court. It was in the third test crash shown in court where the speed of the bullet car was 16 miles per hour that a kink to the roof of the target car was caused. The cars used were elderly Ford Escorts some 10 years older than Miss Williams’ car and of less sturdy construction. It was suggested to Mr Henderson that the hatchback design of the Volkswagen Golf meant that the roof of the car was nearer to the rear of the vehicle than would be the roof on a car, such as the Ford Escort, which has a conventional boot and that as a result a fairly mild impact to the rear of the Golf motorcar would cause damage to the roof. Mr Henderson disagreed with this suggestion because of what he referred to as the robust C pillar at the rear of the Volkswagen Golf which was designed to protect the passenger cabin of the car.

On the basis of his research and the damage to the Volkswagen Golf Mr Henderson’s opinion is that a conservative estimate of the speed change at impact in this case is 9 – 10 miles per hour which would be consistent with the Mercedes van travelling at 12 – 16 miles per hour at impact.

Mr Marshall expressed surprise in his report at the extent of the damage reportedly sustained by Miss Williams’ car but did not suggest a figure or a range of figures for the speed change in this case. However, in the joint statement he expresses the opinion that the Volkswagen is likely to have experienced a speed change of no more than between 5 and 7 miles per hour at impact. No explanation was given as to how that figure is arrived at but in evidence Mr Marshall said that he had relied, in part at least, on a computer programme called PC Crash. This computer programme was not mentioned in either Mr Marshall’s report or in the joint statement and Mr Henderson had never been given any of the data fed into or produced by PC Crash so that he could consider the cogency of Mr Marshall’s opinion. I do not find Mr Marshall’s approach or opinion satisfactory and much prefer the researched based and reasoned approach of Mr Henderson.

It is not possible on the evidence I have heard to make a firm finding on how far forward Miss Williams’ car was shunted by the collision but, fortunately, on the evidence this is not a critical matter. However, I am satisfied that the account Mrs Williams gave and which she repeated to many examining doctors of being propelled 20 feet down the road and rotated through 90 degrees can not be uncritically relied upon. This account is in part derived from what Miss Williams was told by the mechanic and ignores the possibility that the car was moved after the accident. However, I accept Mr Henderson’s evidence that a conservative estimate of the speed change at impact in this case was in the region of 9 – 10 miles per hour and I also find that the impact was a little off set from the centre and that this would have created a rotational force upon the claimant and her car.

Central to this case is an assessment of the claimant’s credibility and the defence case involves a direct attack on Ms Williams’ honesty and integrity. I shall deal with some matters relevant to this issue when I deal with the three areas of alleged injury but at this stage I shall deal with more general matters relevant to credit.

In addition to her work as a G Grade IC Unit nurse at St Thomas’ Hospital the claimant undertook nursing work in the private sector to supplement her income. She had previously worked in other prestigious establishments and I have no doubt that her post was demanding and carried with it considerable responsibility. Her case was put on the basis that prior to the accident she was a “bubbly, outgoing and highly competent” nurse who was “highly rated” by those with whom she worked. Paragraph 9 of the Schedule of Loss (dated 1^st January 2008) states that “[the claimant] excelled in the workplace and was highly valued by her manager, colleagues and patients alike with one exception”. The one exception is stated to have been Belinda Regan who was the claimant’s line manager at St Thomas’s. A somewhat more detailed reference to Miss Regan had been made towards the end of the claimant’s first witness statement which was dated 30th October 2005. The claimant there alleged that Miss Regan had been guilty of a series of bullying tactics towards her as Miss Regan did not like her. One of the bullying tactics related to a disciplinary procedure “brought against me by Belinda Regan for asking another member of staff to bring me an item back from the shop”. The disciplinary procedure resulted in a finding against the claimant who says she thought that the disciplinary procedure was “petty” but ultimately decided “to put the matter behind me and get on with my work”.

The claimant disclosed no documents relating to the disciplinary procedure although it is true that amongst the many consent forms she signed to release documents was one dated 24^th August 2006 to allow the defence to obtain her personnel and occupational health files from St Thomas’s.

On 10^th April 2008, only days before the trial was due to start, the defence took a 20 page witness statement from Belinda Regan to which were attached approximately 200 pages of exhibits. The primary purpose of the statement was to address the events leading up to the disciplinary procedure and the hearing itself which was held on 27^th May 2002 at which some of the claimant’s colleagues gave evidence against her. The hearing resulted in the claimant being given a formal written warning for professional misconduct on 30^th May 2002. The written warning was to remain on file for one year. She was not suspended and, therefore, was deemed fit to continue in her post. The defence ask that I draw an inference adverse to the claimant from what they submit was a deliberate failure on her part to make full disclosure. The claimant on the other hand points out that the documents disclosed by Belinda Regan were handpicked by her, that documents that one might have expected to be disclosed were not and that her disclosure of documentation had not been overseen by a lawyer.

From the material before me I am satisfied that the way the claimant’s case is put does not accurately reflect the way the claimant was regarded in the IC Unit before the accident. The complaints which were being made against the claimant went far beyond that referred to in her witness statement. There were at this time significant performance issues concerning the claimant. Some of her colleagues complained that she was not pulling her weight, did not contribute to or properly support her team of nurses, had failed to complete annual reports on members of her team, displayed a negative attitude and was inflexible, strident and aggressive. She had difficulty in reaching decisions and had earned a reputation of disappearing from clinical shifts.

The written warning detailed the findings made against the claimant which included her failure to complete annual reports with any member of her team, her persistence in asking a junior member of staff to fulfil personal errands for her and her failure to deal appropriately with members of staff. The document referred to the claimant’s manner and unprofessional behaviour on the Unit.

These events took place only a few weeks before the accident. On any basis they must have been disconcerting and upsetting for the claimant; it could not have been comfortable for her to hear her colleagues criticise her and complain about her as they did. The opening up of this additional area of enquiry during the case was inevitable but it led to a situation in which I heard evidence and cross-examination which one would normally have expected to have heard in proceedings before an Industrial Tribunal. The defence, however, submit that the evidence is very important and throws a spotlight on the claimant’s reliability as a witness and on her motive for lying about the severity of the accident and her symptoms: the disciplinary proceedings and their aftermath were a serious blow to the claimant’s self regard and resulted in her position in the IC Unit and her self-confidence being undermined. The accident, therefore, occurred at an opportune moment for the claimant and provided her, as long as her exaggerated descriptions of the accident and symptomology were believed, with a way out of nursing. Such an exit from working life, the defence say, became more attractive to the claimant in the light of the financial arrangements she had made. By July 2002, in addition to her occupational pension, the claimant had in place an array of insurance policies into which she had paid over a number of years. Some of the policies were critical illness policies; resolution of her claims under some of these policies awaits the outcome of this case.

It is not possible to assess the claimant’s credibility without at least attempting to understand a little of her personality. Whatever effect the accident has or has not had on the claimant’s personality I am quite satisfied that even before the accident she was a complex person who could be difficult and volatile. She was self-focussed, self-opinionated and resented criticism. One of her mechanisms for dealing with adverse criticism is to ignore it and to plough on regardless. When dealing in the witness box with the disciplinary procedure she recalled with clarity events which justified her position but failed or refused to recall matters adverse to her. Rightly or wrongly she is left with a sense of injustice as a result of the disciplinary proceedings and refuses to properly acknowledge the criticisms of her. It is this unbending, perhaps obstinate, approach which I conclude is at the root of her playing down the seriousness and potential relevance of these disciplinary proceedings and their aftermath and I am satisfied that the way she dealt with the disciplinary proceedings in her witness statements was not part of an attempt to seek to hide the reason for concocting or exaggerating symptoms. My view is that she genuinely did not and probably still does not see the possible connection between the disciplinary proceedings and the allegation that she has made up her symptoms.

Whatever impact the written warning had on the claimant I accept the evidence that after the disciplinary proceedings she had determined not to appeal the findings made against her, despite advice from some sources to do so and had resolved to put the matter behind her and get on with her work. A formal warning was far from the end of her career; Miss Regan was prepared to work with the claimant to overcome the problems which had been identified and if the worst came to the worst the claimant would have been able to obtain similar employment at another hospital.

The insurance provision which the claimant had made was of long standing and if it is suggested, and I do not think that it is, that the payments that she had made over many years were part of a long game plan to allow her at some time in the future to engineer circumstances in which she could leave nursing I reject the suggestion. However, I, of course, accept that the accident was capable of presenting the claimant with an opportunity which she had not earlier foreseen and that the prospect of leaving a job in which her status and self-confidence had been diminished for a life of financial security is capable of providing a strong motive for lying and embellishing symptoms.

It is against this background that the defendant submits that I should consider the enquiries the claimant made within a few months of the accident about the benefits that were potentially available to her from her insurance policies, about the possibility of ill health retirement and her later refusal – towards the end of 2003/early 2004 – to return to work in any capacity.

The claimant is a single woman who has had to make provision for herself without the benefit of the financial support which a husband or partner might have provided her. She was, and is, financially astute and her enquiries in relation to her insurance policy benefits are wholly in keeping with her approach to her financial affairs. Indeed, in the context of this case, her enquiries were well directed as some of her policies had early notification requirements.

Towards the end of 2002 the claimant was complaining of the symptoms which underlay the three areas of injury of which she presently complains. However, at that time despite her reports of her symptoms no satisfactory diagnosis of her injuries had been made. Indeed, it was not until about 2 years after the accident that her various symptoms began to be separated one from the other and looked at under the broad heads under which they are now addressed. Prior to that, attempts were made to attach labels to the constellation of symptoms which in large measure failed to reach a diagnosis and give a satisfactory prognosis.

During this period the claimant was, I accept, experiencing the symptoms which she has described and was making efforts on her own behalf to seek explanations for and relief from the symptoms she was experiencing. I accept that the claimant felt unable to return to work and in the absence of a diagnosis which explained her symptoms and a prognosis which gave some idea of the future that it was reasonable for her to consider, even at this early stage, the possibility of ill-health retirement. It was not only the claimant who thought that such consideration was reasonable. Dr Randall, the doctor at the claimant’s employers Occupational Health Department, commented in a letter of 25^th November 2002 that the claimant was not able to resume work at that time and she had “wisely looked at the possibility of ill-health retirement”.

It was almost a year later in October 2003 that Dr Snashall, who was by then the doctor at the Occupational Health Department, expressed the view that the claimant’s condition was “remediable and medical retirement not warranted”. He noted that Miss Williams “profoundly disagrees” with this opinion. Miss Williams refused all proposals that she return to work; she said that she feared the symptoms from which she suffered would cause her to make a mistake which because of the nature of her employment might cause the death of one of her patients. This was a fear that she expressed as early as January 2003 to Mr Peter Hamlyn a consultant neurological and spinal surgeon to whom she had been referred. In August 2003 Dr Hamlyn was of the view that an assessment of her ability to return to work depended very much on an accurate diagnosis of her condition. He was unable to properly account for her symptoms but remarked that she had “always pursued her treatment with diligence and initially her symptoms improved. However, she had been left with significant and disabling symptoms”.

I accept that at the time attempts were being made to get the claimant back to work she was suffering from debilitating symptoms for which no accurate diagnosis had been made. In the circumstances, given what I find were the claimant’s genuinely held fears about the safety of her patients I do not find that her refusal to return to work was unreasonable or reflects adversely on her credit.

For a period of 7 days in September 2006 the defence carried out covert surveillance of the claimant the purpose of which was obviously to try to undermine her credibility by demonstrating that she behaved in ways and was able to do things inconsistent with the complaints she made to doctors. I have watched the DVDs of the surveillance tapes in and out of court and having done so my conclusion is that they do not show what the defence had hoped they would and, in fact, in some measure support the claimant’s case.

Despite good weather on each of the days upon which surveillance was maintained, the claimant was seen outside her flat for more than 20 minutes on only two days. This is consistent with her evidence of having good days and bad days and on bad days not emerging from her flat or doing so for only limited periods of time. The surveillance footage shows her holding onto street furniture on a number of occasions whilst standing waiting for traffic and veering to left or right on two occasions as she walked along the pavement. A further occasion when she veered to her right as she walked was noted by the surveillance operative although not captured on film.

On another occasion in order to protect her left arm the claimant is seen to carry a number of bulky bags in her right hand leaving her left arm free although she is clearly unbalanced by this manoeuvre. Interestingly, there are examples caught on video consistent with the claimant’s diminished cognitive functions; she is seen, for example, leaving in the shop a newspaper which she has just purchased, appearing to lose her way in London on 16^th September and returning to check that her car is locked only seconds after she locked it.

The defence sought to show that on another occasion the claimant was walking along the road and reading a newspaper, something which she said she was unable to do and not doing on film. Having looked at this part of the footage I am not satisfied that the claimant was reading and walking at the same time. On another occasion the claimant is seen to bend down to fix something onto a bin outside her flat. This clearly observed manoeuvre is not inconsistent with her evidence and there is nothing in the specific passages of the film to which the defence drew attention or in the recordings generally which undermine the claimant’s credibility.

Another area by reference to which the defence seek to show the exaggerated and unreliable nature of the claimant’s evidence is a comparison of the details of the claimant’s condition and symptoms provided by her in early 2003 on Department of Work and Pension forms which she filled in to obtain state benefits and the details she provided on similar forms in November 2004. From the information the claimant provided it appears as though her symptoms worsened rather than improved over time.

On the basis of the information provided in the 2003 forms the claimant’s application for benefit was refused. She subsequently successfully appealed the refusal and says that she was advised that when filling in the later forms she should admit nothing and give information on the basis of symptoms at their worst. I accept her evidence on this matter and do not find the information given in the later forms damages her credibility.

I have no doubt, however, that the claimant lied when she was confronted by the Nursing and Midwifery Council Notification of Practice which she signed on 14^th November 2005 certifying that in the previous 3 years she had undertaken 35 hours of learning activity relevant to her practice and declaring that her health and character were sufficiently good to enable her to continue to practice safely and effectively as a nurse. Her explanation for signing this document was unsatisfactory; at first she said she was unwell at the time when the document was signed and could have signed it without thinking and that sometimes she would sign documents without knowing what they were. She could not remember, without reference to the CV, what continuing professional development training she had undertaken. Later she sought to justify certifying that she had undertaken the appropriate training by saying that she had confirmed with the Nursing and Midwifery Council that her reading professional literature at home could count as CPD.

The claimant had completed the Notification of Practice document some 7 months after she had received a sum of £85,000 under one of her insurance policies on the basis that she was permanently disabled. The conflict is obvious and damaging to the claimant. The defence suggested that she had worked since the accident in the public sector but there is no evidence to support that suggestion. The second suggestion made by the defence is that she maintained her registration as a nurse rather than allow it to lapse because she intends to work again after this case is finished.

One can readily understand this latter suggestion but in the circumstances of this case I do not think it is well founded. The reality here is that this claimant like so many other nurses according to the evidence of Sarah Dodsworth, did not want to face the prospect of losing her registration as a nurse, did not want to face the decision that she would not work as a nurse again and decided to maintain her registration as a nurse.

This is not the only area of the claimant’s behaviour and evidence to which the defence draw attention as showing that she is unreliable and exaggerating her symptoms. Reference is made to descriptions which the claimant has given to various doctors of her medical history and symptoms. Has she on occasions, for example, played down or minimised the pre-accident condition of her back and neck? She may well have done so but where the doctor whose report is relied upon as demonstrating such an account is not called to give evidence and be cross-examined to see the context of what was said to him, it is difficult to come to a firm conclusion on any particular example. However, there are undoubtedly incidents of the claimant exaggerating her symptoms; an obvious example is her account to Dr Gross that she suffers up to 4 dizzy spells on a good day and 10 – 20 dizzy spells on a bad day.

Such obvious exaggerations have to be looked at against the background of the claimant’s personality and her unreasonable and perhaps unreasoning reaction to people who do not appear readily to accept her account of her symptoms.

Ultimately the question that I have to answer is whether the claimant is a truthful witness as to the fundamentals of her evidence relating to the post-accident symptoms. I have sought to strip away the eccentricities of her personality and to assess the kernel of her evidence. Having done so I am satisfied that she is in essence a truthful witness and her account of her symptoms is reliable.

The claimant’s continuing complaints of dizziness, unsteadiness on her feet and fatigue were addressed by audiological experts instructed by each party. Dr. Peter Savundra, Consultant Aetiological Physician, reported on behalf of the claimant having examined her on 6^th and 13^th November 2007 and Dr. Lam Yeoh, Consultant Audio-vestibular Physician, reported on behalf of the defendant following an examination of the claimant on 13^th March 2008.

The claimant says that bouts of dizziness could be brought on by moving her head to the side when walking and that head movements caused her to feel vertiginous. When swimming she tended to veer to the left and when walking in the street she is liable to stagger and tends to lose her balance when standing up from a seated position. She preferred to avoid escalators and lifts and fast moving television images could make her nauseous and vomit. The symptoms fluctuated in intensity causing her to have good days and bad days.

The doctors agree that the claimant sustained a peripheral vestibular lesion in the accident which was capable of causing a balance disorder. It is not possible in a living patient to identify the exact pathology within the inner ear and that is sometimes also the case at post-mortem. The severity of the symptoms referable to vestibular pathology is not directly proportional to the severity of the pathology itself. Of a group of patients with similar vestibular pathology some may be symptom free, some may have intermittent symptoms while others may have intrusive florid symptoms which prevent a return to work.

In Dr Savundra’s experience, one is as likely to find mild pathology with mild symptoms as one is mild pathology accompanied by severe symptoms and the worst symptoms are most commonly related to the smaller lesions. There is, he says, an inverse correlation between the severity of the lesion and the severity of the symptoms. In support of this thesis, Dr Savundra, who has himself published in this field, relied on a paper published in 1998 entitled “The effect of severity of unilateral vestibular dysfunction on symptoms, disabilities and handicap in vertiginous patients”. The paper was written by a number of doctors one of whom was Professor Luxon, an acknowledged authority in vestibular pathology who is referred to in a letter dated 21^st February 2008 from the defendant’s solicitors as their “preferred choice” as audiological expert in this case.

It was Dr Savundra’s view that the persistence of the complainant’s symptoms was explicable by a number of factors. Firstly, there was the delay in the claimant receiving the appropriate treatment. The claimant had herself carried out research on the internet in order to obtain relief from her symptoms in the months following the accident and that research had provided her with the Cawthorne-Cooksey exercises which were designed to take advantage of the brain’s ability to reprogramme its balance mechanisms. However, these exercises inevitably in the short term make the patient feel worse and the claimant did not persist with them as they had that affect on her. It was not until January 2005 - 2½ years after the accident – that a vestibular injury was diagnosed and it was then that she began to receive treatment. In the meantime, she had reduced her activity levels and developed destructive coping mechanisms to deal with her symptoms. These mechanisms included a reliance on visual cues which caused visual vertigo which was itself disabling.

Secondly, because of a failing in the National Health Service, which has only recently been addressed, the claimant like other patients throughout England did not receive the necessary treatment for the visual vertigo between 2005 and her being seen by Dr Savundra in 2007. Thirdly, the presence of other injuries and their resulting symptoms (e.g. the neck and left arm) reduced the claimant’s ability to take full advantage of the Cawthorne-Cooksey exercises and, fourthly, the claimant’s reduced activity following the accident aggravated rather than improved her balance dysfunction. This inactivity allowed her core and anti-gravity muscles to lose tone which impacted upon her posture. Good posture is important to counteract the effects of vestibular damage.

Dr Savundra found the history of the claimant’s symptoms and her presentation to him consistent with the peripheral vestibular lesion which was identified following the audiological tests he carried out and he saw no reason to doubt her account of her post-accident symptoms.

Dr Yeoh, on the other hand, while not disagreeing with Dr Savundra about the potential relevance of the delay in the vestibular lesion being diagnosed and the claimant receiving the appropriate treatment, the possible impact of other injuries on her recovery and the effect of the claimant’s inactivity suggested that the symptoms reported by the claimant were disproportionate to the injury.

Although Dr Yeoh has not published in the field of vestibular pathology, his practice does include balance disorders and in his experience patients with pathology similar to that of the claimant, which he regards as mild, are seldom likely to present with the symptoms which the claimant has reported. In his view, relatively mild symptoms for a period of a couple of months would have been in keeping with the results of the balance tests which he obtained and for the symptoms to persist with the reported intensity could be either because of some other pathology coming into play or, as a lot of the symptoms are entirely subjective, it could be that the claimant has come to perceive herself in the way she self-reports. When questioned about this aspect of his evidence, Dr Yeoh said that he was not suggesting that the claimant was malingering, and he confirmed his agreement with that part of the joint report (paragraph 2.4) which states:

I accept the claimant’s evidence about the nature and intensity of the symptoms caused by the vestibular pathology and on balance I prefer Dr Savundra’s analysis of her condition to that of Dr Yeoh.

Both doctors considered the impact of the vestibular lesion on the claimant’s ability to work. The passage of the joint report dealing with this matter reads as follows:

“2.12

We agree that the totality of the symptoms Miss Williams reported would have prevented her returning to the highly demanding role of a Senior Intensive Care Unit Sister. Dr Savundra states that, for example, the need to bend over patients and bend down to change drains, to look up to change intravenous fluid solutions, the need to manage a group of nurses, the need to monitor computer screens and the effect of shift work on fatigue would have all been relevant to the symptoms resulting from vestibular pathology.

2.13

We agree that many patients respond well to optimised vestibular rehabilitation therapy. Some patients need to persevere with an exercise regime on a long term basis. Some patients do not respond well or at all ….. Some patients are capable of a return to work. In Miss Williams’ case, purely in the context of her vestibular pathology, it is more likely than not that at some stage in the future a return to some form of employment is feasible. We agree a return to her previous role as a Senior Sister in an Intensive Therapy Unit is unrealistic.”

On 21^st April 2008, the day after the joint report was signed, Dr Yeoh wrote to the defence solicitors seeking to “clarify” his position with reference to the claimant’s suitability to return to her previous employment. He said:

“I believe that items 2.12 and 2.13 in the joint statement might imply that the claimant’s mild vestibular disturbance is sufficient to prevent her return to work in her previous job in intensive care. As indicated in my original report, the claimant’s balance disorder in my opinion should not prevent her from working other than working at heights and therefore she should be able to return to her previous job when considering solely the question of her mild balance disorder.”

Dr Yeoh goes on to state that in his opinion paragraph 2.12 referred to the complete picture of the claimant’s reported symptoms, particularly, those relating to concentration and meditation. This explanation is difficult to accept in the light of paragraph 1.3 of the joint report which clearly states that the doctors were confining themselves to matters referable to the field of audiological medicine and neuro-autology and to those matters which are related. Dr Yeoh also seeks to qualify paragraph 2.13 by stating that the last line of that paragraph should have a qualification with reference to the sum of all the claimant’s reported disabilities and not solely her vestibular disturbance.

I do not find Dr Yeoh’s attempt to dissociate himself from this part of the joint report to be satisfactory. The report dealt explicitly with vestibular pathology and the penultimate sentence of paragraph 2.13 makes that clear.

Dr Savundra stood by the conclusion of the joint report. In his view it would be inappropriate for Miss Williams to return to her pre-accident work. Being a Sister in an IC Unit is a demanding role with the possibility of sudden emergencies, a need to concentrate and an ability to input details onto a computer. This package of demands, in his view, was inconsistent with Miss Williams’ diagnosis. With optimised therapy, she might be able to undertake work as a Sister in a small out-patients department. The therapy will involve sport and/or exercises and if some other physical condition compromises her ability to follow the therapy, her recovery will be impeded. Dr Savundra’s prognosis was guarded and he declined to put a percentage on the chances of her making a recovery or give a timescale in which a recovery could be achieved. I accept Dr Savundra’s evidence on these matters.

On the day of the accident the claimant complained of severe pain in the left side of her neck, the left shoulder and the left arm and a sensation as though the blood vessels in her left arm had been injected with a cold liquid. Her present complaints include persistent diffuse pain or paraesthesia in the left arm which is aggravated by carrying and lifting items and by repetitive use or raising of the arm. The claimant described the pain as “an electric shock type effect”. No injury is demonstrated on scans or x-rays and one is dependant once again on the self-reporting of the symptoms by the claimant.

The claimant had a pre-existing degenerative condition of the spine and neck probably dating back to an earlier road traffic accident in 1971. Over the years she has suffered intermittent pain from these degenerative changes. However, visits to her osteopath every 18 months or so resolved any problems. She was back aware and was able to carry on working without any real difficulty. It is accepted that the present accident exacerbated this condition and that for a few months after the accident complaints arising from this exacerbation formed part of her symptomology. However, this element would have resolved by the end of 2002 and thereafter any complaints would not be related to her pre-existing condition.

Mr John Beavis, a Consultant Orthopaedic and Trauma Surgeon and Hunterian Professor at University College, London, was instructed on behalf of the claimant to examine her and he did so on 14^th June 2006 and 18^th July 2007. I accept his evidence that as he does very little medico-legal work he was able to spend considerable time (not less than 1½ hours on the initial consultation and 1 hour on the follow up) with the claimant discussing her symptoms and examining her. He was impressed with her genuineness and accepted the honesty of her self-reporting.

On examination Mr Beavis found that rotation of her neck towards the right and lateral flexion towards the right produced pain. In both Mr Beavis’s examinations he found muscle spasm to the left trapezium muscle. Spasm of the left trapezium muscle had also been identified on palpation of the neck by Mr Jeremy Hucker, a Consultant Orthopaedic Surgeon, who examined the claimant on 26^th July 2004 on behalf of Ace Europe Insurance. Mr Beavis also found muscle wasting in the forearm and upper arm which he was able to measure and an obvious difference in size between the hypothenar and thenar eminences on the left hand when compared with those on the right which were larger. These differences are consistent with reduced use which is itself an indication of pain when the left arm is used. Furthermore, Mr Beavis demonstrated photographically the appearance of wasting of the left trapezium muscle when viewed from both the front and the back.

Mr Beavis’s conclusion is that the claimant’s condition and symptoms are consistent with a Brachial Plexus injury. This would have been caused by lateral flexion rotation force applied to her neck and to some extent to her upper thoracic region giving rise to a subtle neurological injury affecting the nerve roots or the nerve trunks after they have emerged from the spinal cord. Had the collision been a straight rear end shunt, Mr Beavis would not have postulated a Brachial Plexus injury but such an injury would be consistent with a collision in which the vehicles were offset resulting in a rotational force being applied to the claimant’s car and when the claimant had her head turned looking to the right. The sensation of feeling as though cold liquid was being injected into the arm is typical of the type of pain symptoms that can occur with this type of injury, as are symptoms of pins and needles and attacks of electric shock type pain.

Mr Beavis warns that there is a danger that patients who suffer this kind of injury are accused of fabricating their symptoms or imagining them because of the absence of objective science.

Mr Robert Hay, a retired Consultant Orthopaedic Surgeon, examined the claimant on 6^th September 2007 on behalf of the defendant. He remarked on the “astonishing discrepancy between the simple and undoubtedly genuine account of trivial injuries made by the casualty officer on the day of the accident and the weighty (four lever-arched files) clinical notes that have been generated since that time”. His view is that the claimant “escaped physical injury other than of the most trivial kind in this accident” and that “the physical consequences of this accident should not have impaired her return to work after her successful holiday in the Shetland Islands and that her failure to do so and her subsequent medical retirement cannot be laid at the door of any physical injury suffered in this accident”. He felt the claimant was normal on physical examination but thought it possible that she had some mild arm symptoms due to non-accident related degenerative changes in her neck and that she had misattributed these symptoms to the accident.

Mr Hay’s views were expressed even more clearly in a letter dated 9^th December 2007 which he wrote to the claimant’s solicitors in response to a request for clarification of matters contained in his original report. He stated that his opinion that the claimant had suffered nothing other than trivial injuries was based on the clinical likelihood of injury, the notes created at the time and the claimant’s immediate post-accident behaviour. He was of the view that there was nothing wrong with her at all other than that which is of her own making. It was his opinion that “Miss Williams’ complaints have no basis in physical injury and I believe she is mounting a forceful and complex deception to meet some agenda as yet undisclosed”.

Despite the clarity of Mr Hay’s conclusions, I found him a very unsatisfactory witness. It was not possible from the evidence he gave to be clear as to which medical records, reports and witness statements he had read before writing his report, reaching his final conclusion or writing the letter of 9^th December 2007. For example, Mr Hay contradicted himself when answering questions about whether he had read the lay witnesses’ statements. In the context of this aspect of the claimant’s reported symptoms the lay witness evidence – in particular that of Pam Rose – is important. It is she who gives evidence of the claimant’s complaints about her arm at the Accident and Emergency Unit on the day of the accident and speaks of the claimant’s arm being noticeably cold both at the Accident and Emergency Department and during the following weekend. When this evidence was brought to Mr Hay’s attention in cross-examination he said that he did not know that the claimant had described these symptoms but that it did not surprise him in the least as she had described a host of symptoms. In his view, the claimant was familiar with all these neurological complaints and she is simply saying that she suffers from them. She is lying or at least started off that way. In any event, he did not attach any significance to the evidence of Pamela Rose; he knew of no condition which would produce the symptoms spoken of and that they would not arise from an accident of this nature.

On examining the claimant Mr Hay found no observable muscle wasting around the shoulders and arms. In his view this is a matter of clinical observation and is not something that can be measured in a clinical setting by a tape measure. Similarly he detected no muscle spasm. When it was pointed out to him that not only had Mr Beavis detected muscle spasm but so had Mr Jeremy Hucker, Mr Hay said that he could not recall reading Dr Hacker’s report but in any event anyone can simulate spasm and this claimant was capable of inducing muscle spasm.

Mr Hay’s report contained a number of inaccuracies which were the product of not reading source material and not reading the witness statements. In reliance on Professor Dolan’s report (rather than on the underlying records) Mr Hay noted a tendency in the claimant to psychiatric depression which may be of significance. The records do not record such a tendency. Furthermore, the report refers to the “successful holiday in the Shetland Islands”. In evidence Mr Hay said the significance of the claimant conducting herself normally on holiday was that it “draws the curtain” on the suggested Brachial Plexus injury – an injury which he associates with severe traumatic injuries suffered by motor-cyclists in road traffic accidents. A reading of the witness statements would have disabused him of the idea that the claimant’s conduct in the Shetland Islands was normal or that the holiday was “successful”. Furthermore, he records in his report that in the accident the claimant’s car was spun 180 degrees. He conceded that the reference to 180 degrees might have been a mistake on his part.

The claimant gave evidence that her appointment with Mr Hay lasted some 30 minutes: it started at 11.30am and finished at 12pm when Mr Hay’s telephone rang to indicate that the next patient was waiting. Mr Hay, according to her, just seemed to skim the surface and did not appear to be interested in listening to her because each time she tried to answer a question fully, he cut her short. Mr Hay’s recollection is that the claimant cancelled her appointment on three occasions and before she attended upon him she wished to see his curriculum vitae. Because of the anticipated difficulty in the consultation with the claimant, Mr Hay said he allocated 2 hours to her. He records in his report that her complaints were “curiously fugitive”. When she was questioned in detail over the distribution and nature of her arm symptoms, she deflected the questioning to another area. That in his experience was a phenomenon that is often encountered when patients rely on memory rather than current experience for the description of symptoms. Patients with genuine current pain usually welcome rather than evade searching questions. As was repeatedly shown during the course of the hearing, the claimant is often unable to directly answer questions and tends to wander around the subject rather than direct herself at the information sought. This must have been as frustrating an experience for Mr Hay as it was for those involved in the court hearing. However, where the evidence of Mr Hay and the claimant conflict over the length of the appointment, I accept the evidence of the claimant and I conclude that the shortness of the appointment coupled with the claimant’s verbosity resulted in Mr Hay not obtaining a full and accurate assessment of this claimant.

Had the evidence ended there I would have no difficulty in accepting Mr Beavis’s analysis of the claimant’s condition. However, matters took what must have been an unexpected turn at the point of the compilation of the joint report and a further unexpected turn when Mr Beavis came to give evidence.

Paragraph 6 of the joint report reads, as far as is relevant, as follows:

“The surgeons agree that injuries suffered … would be a strain of the muscles and other soft tissues of the neck. There is now agreement that there was no damage to the main trunks of the Brachial Plexus.”

On the face of it, Mr Beavis’s position appeared to have changed. Mr Beavis explained in evidence that at the time of the joint statement he could not obtain literature which would enable him to substantiate his position about the subtle Brachial Plexus injury which he said had been sustained. Accordingly, he said, he made it clear that he believed that there was neurological damage to account for the claimant’s symptoms and that this would be at the level of the nerve roots which he would include within the term “soft tissue”. He was not suggesting that the Brachial Plexus injury in this case was of the sort suffered by motorcyclists to which Mr Hay referred.

By 11^th April 2008, Mr Beavis had received a copy of the joint statement of Mr David Price, the Consultant Neurosurgeon instructed in this case to advise the claimant and Dr Michael Gross a Consultant Neurologist instructed on behalf of the defence. At page 11 of the joint statement, while dealing with the claimant’s neck injury, the report reads:

“We attribute the pain, as complained by Miss Williams to a chronic whiplash injury with nerve root or Brachial Plexus involvement and now that almost 6 years has elapsed since the accident Mr Price is pessimistic about any significant resolution of the symptoms with further treatment. Dr Gross in not disagreeing will draw attention to his comments about her perception of functional handicap compared to what is the reality.”

Thus fortified by the view of these doctors that there was nerve root or Brachial Plexus involvement in this case, Mr Beavis wrote on 11^th April to the claimant’s solicitors drawing attention to the views of Mr Price and Dr Gross and reiterating that his diagnosis of nerve root injury/irritation remained as indicated in his reports.

By the time Mr Beavis came to give evidence he had carried out a wider literature search and, at court for the first time, he produced a paper which he said supported his diagnosis. The defence, not surprisingly, objected to the introduction of and reliance upon this paper and argued that it would be unfair to expect Mr Hay to respond to it without adequate time to read and consider it and if necessary to make further enquiries of his own. Ultimately, the paper was admitted into evidence on the basis that when assessing its contents and whether they support the diagnosis of Mr Beavis I would bear in mind the manner in which the paper had been brought before the court and the defendant’s being put at a disadvantage in dealing with it.

In the event, I do not need to refer to that paper in deciding the orthopaedic issues in this case. Mr Beavis was a thoughtful, careful and open-minded witness who kept his conclusions under review. His analysis is consistent with the evidence of the alignment of the cars at impact and with the claimant’s account that she was looking to the right at the time of the collision. Indeed, I find that at the point of impact her head must have been turned to the right. I accept his explanation for what appeared to be a change in his diagnosis at the time of the joint report. I, therefore, accept Dr Beavis’s analysis that the claimant’s continuing symptoms are consequent upon a minor Brachial Plexus injury involving irritation to the nerve roots and reject the evidence of Mr Hay on this issue.

It is Mr Hay’s view that the claimant would have given up work at 55 years of age even had the accident not occurred. He said that he formed this idea because of the claimant’s pre-accident back and neck pain, her bunions, her depression and her work record and he felt that she would have been happy to work on for only another 3 years. In the joint report, Mr Hay expressed the opinion that the degenerative changes in the claimant’s back would have brought her nursing career to an end at the age of 55. Mr Hay reached these views without reading the treatment records of the claimant’s osteopath and without realising that in the 30 years prior to the accident the claimant had taken only 3 days off work because of neck pain. The view of Mr Tatton, the claimant’s treating osteopath, as set out in a letter to the claims department of Ace Insurance on 21^st September 2004 was that intermittent but minimal osteopathic treatment over the years had kept the claimant pain free and able to maintain an active lifestyle and work as an Intensive Care Unit nurse.

Mr Beavis thought that Mr Hay’s view was “nonsense”. On that matter, too, I agree with Mr Beavis. Mr Beavis’s view was that the claimant’s pre-existing back pain had a propensity to increase as she progressed through her fifties but in the light of modern supportive care and appropriate working practice, she had a good chance of working until the age of 60. Beyond that date Mr Beavis would not speculate. As to her present condition Mr Beavis was of the view that the chances for recovery are poor.

Before turning to consider the evidence relating to the complaint of brain injury it is necessary to consider the numerous criticisms made on behalf of the claimant of Dr Michael Gross who was instructed on behalf of the defence to examine the claimant and to consider whether there was evidence of brain injury consequent upon the accident. Dr Gross left the National Health Service in 2001 and now works in the private sector. He takes on 30 – 40 new cases each week and his clinical practice is fully booked; each year he takes on in excess of 300 medico-legal cases. He is without doubt highly qualified and skilled in his field and a man of great energy who is committed to his work.

He examined the claimant on 28^th September 2007 and, thereafter, produced a report which extended to over 90 pages. At the beginning of his consultation with the claimant the claimant indicated that she was going to tape record proceedings. Dr Gross did likewise and later noted in a report that he had been aware that such consultations had been recorded by patients on only two previous occasions and those were claimants who were elaborating.

Dr Gross came to firm conclusions about Miss Williams. He thought that she was a “sophisticated claimant” whose “history was littered with inconsistencies” and whose “account is not to be relied upon”. He noted that on ceasing work she had already gained significant financial recompense and was financially secure, that the compensation level in this case could be as much as £900,000 and as she still had the responsibility of her mother in Wales “it is not difficult to see the motivation for Miss Williams to continue with this litigation in the style she has adopted”. His view is that at best Miss Williams is deluding herself about the mechanism by which her symptoms are being generated, if they are real; at worst, this is an orchestrated deception in order to gain substantial compensation.

It was inevitable that Dr Gross’s views would be roundly challenged on behalf of the claimant but the criticisms made of him go very much further than that. In opening the case Mr Grant said that it was the claimant’s case that Dr Gross had acted improperly during the case and had crossed the line between expert and advocate. That accusation resulted in Dr Gross submitting immediately before he gave his evidence a further lengthy witness statement dealing with his own conduct in the case and the possible professional and commercial consequences to him of a critical finding.

One of the criticisms made of Dr Gross relates to his possession of a medico-legal report on the claimant compiled by Dr Peter Harvey who is a colleague of Dr Gross. This report had been commissioned on behalf of the claimant but is not now relied upon by her and has not been disclosed. On 7^th April 2008, one week before the commencement of this trial, the defence solicitors wrote to the claimant’s solicitors saying that Dr Gross had received anonymously through the post a copy of the medical report prepared by Dr Harvey; that Dr Gross had no idea of the source of the report and that initially he was unaware of its significance. It was only upon reading the report that Dr Gross realised what the document was.

The claimant’s solicitors took a witness statement from Dr Harvey on 10^th April 2008 and sent a copy of it to the defendant’s solicitors suggesting in the covering letter that Dr Gross knew full well the source of the report, that he had solicited the report knowing that it was privileged, that he did not receive the report anonymously and had not become aware of the report only very recently.

In their reply of 11^th April 2008, the defendant’s solicitors said:

“Dr Gross has asked us to emphasise that Dr Harvey’s report was not directly sought by him. Dr Gross and Dr Harvey are professional colleagues well known to each other. This case arose as part of a general discussion at a neurological lecture on Malingering. Neither party actually named the claimant (as they could not recall her surname at that time) but realised that they were talking about the same case. Dr Harvey revealed that he had reported on the case. Dr Gross mentioned that it would be interesting to see a copy of the report.”

A little later:

“In suggesting that it would be interesting to see the report, Dr Gross considered that he was simply fulfilling his duty to the court.”

The letter makes the obvious point that Dr Gross is not legally trained.

When giving evidence, Dr Gross agreed that he had asked Dr Harvey for a copy of his report but said that he was interested in it for the purposes of his ongoing research into malingerers. The report arrived some weeks later in a brown envelope with no covering letter and by then he had almost forgotten about it. Dr Gross could not remember how long after receiving the report he informed his instructing solicitors about it.

When he received the report he knew it was significant and that it would have a different status from other documents because Dr Harvey had been disinstructed. He admitted to having had “an idea” of the source of the report and sought to justify maintaining the contrary to his instructing solicitors by the need to protect Dr Harvey and his need to confirm that the report had indeed come from Dr Harvey.

Dr Gross’s evidence on this matter differs in some respects from the content of Dr Harvey’s statement of 10^th April. However, Dr Harvey has not given evidence and his statement, it seems to me, is not before me as evidence in the case. I, therefore, put the content of the statement out of my mind when assessing Dr Gross’s evidence. I am satisfied that Dr Gross asked for a copy of Dr Harvey’s report and that when he did so he knew that the report related to the present case, that Dr Harvey had been disinstructed and that the case was still live. In putting himself in the position of being in possession of Dr Harvey’s report, Dr Gross displayed very poor judgment. Moreover, the way he dealt with the report and part of the evidence he gave about it in court were not straight forward. He misled his instructing solicitors and I reject the evidence he gave that he had any doubt about the source of the report even if it did arrive in a brown envelope with no covering letter. Accepting, as of course I do, that Dr Gross has no legal training his claim that he thought his conduct was consistent with the discharge of his duties to the court as an expert witness is, in the light of the vast number of medico-legal cases he undertakes, untenable.

The criticisms of Dr Gross do not end there for adverse comment is made in relation to the fairness and accuracy of his reports. I do not intend to deal with all the points upon which cross-examination on this topic focused but some need to be detailed to explain my ultimate finding.

A potentially important aspect of assessing whether or not a patient suffered a brain injury is deciding whether there is a history of post traumatic amnesia (PTA). Accurate recording of the patient’s account is critical. In his first report Dr Gross records that the claimant had no memory of a taxi having to pick her up from hospital but she did recall a later occasion when she was in Tesco’s car park and picked up some bottles of wine for a friend and when she put the bottles into a trolley she toppled into the trolley herself. A comparison of what Dr Gross included in his report with a transcript of the tape recording made by the claimant at the time of the consultation shows that both matters are wrongly recorded by Dr Gross. The complainant told Dr Gross that she did indeed recall the taxi but not the journey home in it and that she had no recollection of the Tesco’s incident but that she had been told about it.

Early in his report Dr Gross said, when commenting on the claimant’s recording the consultation, that “the transcription will hopefully demonstrate the significant inconsistencies there are with regard to Miss Williams and the way she presents her history”. On this occasion, the transcript indicates the inaccuracy of Dr Gross’s report on a central feature of the case. How could the claimant have protected herself against the obvious adverse inference which would have been drawn against her had the transcript of her recording not been available?

In the same report, Dr Gross says that when asked about relationships the claimant initially refused to answer questions. Reference to the transcript shows that she answered such intimate questions fully. Dr Gross’s response was that he had got the impression that she was evading the question. I reject that explanation.

In the same report, Dr Gross quotes from a letter dated 27^th January 2003 from Mr Peter Hamlyn, a Consultant Neurological and Spinal Surgeon, to the claimant’s General Medical Practitioner in which Mr Hamlyn said that the claimant had a functional stammer and that she was having nightmares about returning to work only to make a mistake and lose her licence. This was an obvious reference to the claimant’s fear of losing her licence to practice as a nurse but Dr Gross misinterpreted this as a reference to her fearing she would lose her driving licence. Under cross-examination he refused to accept that he had made this mistake.

On examining the claimant Dr Gross said that he found no evidence of muscle wasting around the left shoulder or hand but he confirmed in evidence that his examination had been visual, he had not asked Miss Williams to take off her clothes and claimed that he could tell whether there was any muscle wasting by the way clothes hung on the body. This was in my judgement an inadequate basis upon which to come to the conclusion he reported.

Although Dr Gross conceded that lay witnesses who describe the claimant’s presentation after the accident describe symptoms consistent with brain injury, he was dismissive of them. He gave them scant attention in his report. He agreed with Dr Iddon, a Consultant Neuro-Psychologist instructed on behalf of the defendant, that the accident and reported symptoms did not tally and he said that it was no surprise to him that the witness statements were “disproportionate” because Miss Williams had told those witnesses the same set of symptoms and they were merely being repeated. He accused the claimant of trying to “swamp out” expert opinion by lay witness comments. The reality, however, was that much of the relevant evidence of these witnesses had not been challenged in cross-examination on behalf of the defendant and a significant proportion of it was evidence of what the witnesses had observed not mere repetition of what the witnesses had been told by the claimant.

Dr Gross was similarly dismissive of the claimant’s vestibular symptoms and of Dr Savundra’s findings and made it explicitly clear that he did not defer to a consultant audiologist. It was not until the joint statement prepared by Dr Gross and Mr David Price that Dr Gross made any concession about the claimant’s vestibular complaints and by that time the defence audiologist had confirmed the presence of a peripheral vestibular lesion.

The claimant’s submission arising from these criticisms of Dr Gross’s report is that his approach to his task was unfair to the claimant, he did not spend enough time with the claimant or considering his response to her symptomology and that he crossed the line between an expert witness and an advocate.

A further example of his becoming an advocate for the defence case, it is said, is the fact that at a time when Belinda Regan was not a defence witness, he obtained her contact details from his instructing solicitors, contacted Belinda Regan and encouraged her to give evidence in support of the defendant’s case.

Where do all these criticisms leave Dr Gross’s evidence? In my judgment the criticisms made of him on behalf of the claimant are justified. Although Dr Gross has dealt with the claimant’s case voluminously there are clear indications of a lack of thoroughness and a failure to spend adequate time in properly analysing the case. It may be that his heavy workload and high documentary output has prevented this. It is equally likely in my judgment that he approached the case with a set view of the claimant and looked at the claimant and her claimed symptomology through the prism of his own disbelief. From that unsatisfactory standpoint he unfortunately lost the focus of an expert witness and sought to argue a case. I am driven to the conclusion that I am unable to place reliance on Dr Gross’s evidence in this case.

However the claimant was viewed by her colleagues before the accident it has not been suggested that she was unable to function at a sufficiently high level to discharge her duties as a G Grade Nursing Sister or to lead an active life. Indeed, there is evidence which I accept that she was an astute and capable woman. She had a good memory, was able to multitask as a matter of routine and had successfully completed a Masters Degree. Her friend Jan Watchman described her as having “had excellent powers of recall and very good concentration”. Sarah Dodsworth said that before the accident she was a very quick and clever person who was able to process information quickly and Peter Law, the claimant’s financial advisor, found her to be confident, astute, very bright, intelligent and very precise. David Sidall, the husband of one of the claimant’s friends, described the claimant as a “pretty switched on lady” and Sandra Quayle, who has been the claimant’s hairdresser for almost 30 years, described her as very organised and intelligent; a warm lady who was very caring of others and “as sharp as a pin”.

The cognitive changes of which the claimant complains are confirmed by these and other witnesses from their own observations. Witnesses speak of the claimant’s forgetfulness and lack of organisation, difficulties in word retrieval and the development of a stammer especially when she is under stress, an inability to multitask and a need to concentrate on one topic at a time, difficulties in maintaining concentration, disinhibition, a tendency to become tired easily and to be difficult to deal with. Peter Law describes her as a different person after the accident “as though she has undergone a change in personality”. Sandra Quayle also speaks of a personality change and describes her as cold and unemotional with a “could not care less” attitude to the feelings of others (a personality trait which I am sure a malingerer wishing to engage sympathy for and belief in her complaints would be unlikely to feign). The claimant’s friend, Pam Rose, details her observations of the change in the claimant since the accident and concludes by saying that she can’t help asking herself “where has that old friend gone because the person that is left is just not the same”.