Clarke v Maltby

The Claimant, Estelle Maria Clarke, who was born on 30 October 1964 and is therefore now 45 years of age, sustained multiple and life threatening injuries in a road traffic accident on 25 September 2004 when she was travelling as a front seat passenger in a car driven by the defendant. Liability was admitted on 15 April 2005, and judgment for damages to be assessed was entered on 21 August 2008. In addition to her physical injuries the Claimant suffered an acute psychiatric reaction to the accident. It is also now accepted by the defendant that she suffered brain injury in the accident; but the nature of the brain injury and its effect upon her cognitive functioning is disputed. The claimant is a solicitor in private practice, and the central issue before me was the degree to which the brain injury has affected her capacity to function as a solicitor specialising in banking related transactions. In consequence both general damages and the claim to loss of earnings, past and future, are in issue. The remaining heads of damage have been resolved by agreement.

The accident happened at about 8.40 pm on 25 September 2004. The defendant, with whom the claimant was then in a relationship, was driving along Cupernham Lane near Romsey, Hampshire, when he executed a dangerous overtaking manoeuvre. Having completed the manoeuvre he drove at speed over the give way lines between Cupernham Lane and Sandy Lane and into a head on collision with a car being driven by a Miss Hobbs. The collision impact speed of the two cars was estimated to be in the region of 80-110 miles per hour. Miss Hobbs was killed. The defendant was subsequently convicted of driving without due care and attention at the Newforest Magistrates’ Court on 16 December 2006.

The claimant’s last memory before the collision was of the defendant overtaking a people carrier in a manner that she recalls making her feel anxious, and that he then continued to accelerate. She remembers being aware of a junction ahead, and thinks that she shouted “stop” or something similar. Her next memory is of what she describes as a ‘yellow bang’. She believes, and it is now accepted, that she was rendered unconscious by the impact. Her next memory is of fumbling for the catch to her seat belt, the car by then being stationary. In her first witness statement dated 6 May 2009 she gave the following account of what then happened.

“38.

From that point on my memories are patchy and difficult to sort into any chronological order. I remember being pleased I could open the passenger door and I have a memory of putting my right foot on the ground and nothing happened. I subsequently discovered that my right ankle and foot were badly damaged and would not support me. I then have a memory of lying in the recovery position on the verge beside the road. I was aware that I had glass in my mouth which I was unable to spit out and remember taking a decision to scrunch is up and swallow it. I also have a memory of not being able to breathe well whilst lying on the ground and I thought that I was dying. I remember being very frightened and very lonely. My memories remain very patchy from that point.

39.

I don’t remember the paramedic arriving…I have some vague memories of other people arriving including the ambulance and the Fire Brigade. I recall being checked by a doctor who then left to go and look at the driver of the other car. I remember the chest drain being inserted into the left side of my chest below my armpit. I remember being put onto a flat board. I don’t remember being put into the ambulance. I do, however, have a vague memory of a policeman trying to question me in the ambulance before he was removed by the medical attendants.”

The ambulance that took the claimant to Southampton General Hospital left the scene approximately 40 minutes after the accident. She was admitted to the Intensive Care Unit where she was found to have sustained multiple injuries including:

Happily the claimant has made a good, if not complete, recovery from her physical injuries, and was finally discharged from outpatient care by her treating orthopaedic surgeon in April 2005. When seen by Mr Peter H. Worlock, a consultant trauma and orthopaedic surgeon, in December 2007 she was continuing to suffer some residual discomfort in the neck, left wrist and right ankle, but they do not give rise to a significant continuing disability.

The issues

In summary it is the claimant’s case that as she made her substantial recovery from her physical injuries, she became increasingly aware of a range of problems including mental fatigue, cognitive dysfunction, disinhibition, temper, impaired memory and concentration and processing, and compromised and inappropriate speech and word finding. It is submitted that such symptoms are attributable to injury to the brain, and that given the period that has elapsed since the accident, no further significant improvement can be expected. She also suffered from a chronic/severe post traumatic stress disorder and a chronic/severe major depressive disorder, some of the symptoms of which can replicate those caused by an organic brain injury. But she has now made a recovery from those psychiatric conditions such that any persisting psycho-pathology is now only at a sub-clinical level. Accordingly it is submitted that the continuing symptoms must be attributed to the brain injury.

As to the effect of her continuing symptoms, it is submitted on her behalf that it is now clear that she will be unable to pursue a career as a solicitor in private practice, and has a markedly reduced earning capacity.

It is now the defendant’s case that the claimant sustained a head injury with sequellae which, at present, have the effect of:

The defendant submits that the claimant is capable of working full-time in private practice as a fixed-share equity partner of a regional firm of solicitors doing transactional work with an earning capacity of about £120,000 to £130,000 gross (salary and bonus) a year. But it is further submitted that in view of her continuing symptoms, the claimant would be acting reasonably if she were to decide to withdraw from private practice and take up less onerous employment as an employee of a business or organisation in the private or public sectors.

Resolution of such issues, in particular the effect of such symptoms as she continues to suffer upon her capacity to function as a solicitor in private practice, necessarily involves consideration of her career to date.

The claimant read English at the University of Wales, graduating in 1986 with a 2.1 degree in Linguistics and English Literature. On leaving university she was employed as an assistant to a television producer, but on 29 October 1987 she was offered articles at Clifford Chance to commence in September 1989. Between 1987 and 1989 she undertook the courses for the CPE and the Solicitors Professional Examination at the College of Law, duly joining Clifford Chance on 7 September 1989. Although her initial assessment at Clifford Chance in November 1989 raised a question as to whether she had “the necessary ingredients to be successful in a large firm like CC”, an appraisal on 24 May 1990 from P. A. Palmer in Banking was very positive.

“Estelle is a highly motivated and diligent worker and her work has been of a consistently high quality. She has a friendly and confident manner which has been commented on favourably by clients and other parties with whom she has worked. At times Estelle is inclined to be a little “headstrong” but I believe will “mellow” as she gets greater experience. With her enthusiasm/commitment and above average ability she is well suited to the work of our department and its transactional nature”.

That appraisal was confirmed by a further and equally positive appraisal by a Mr Johnston in Pensions on 27 September 1990.

On 15 December 1990 the claimant married Charles Hamill-Stewart. On 8 April 1991 she began a five month secondment at Airbus Industry in Toulouse, and on 12 June 2001 was offered a position in the Banking department at Clifford Chance on completion of her articles on a salary of £27,000. On 19 June 1991 the secondment was extended for 3 months at Airbus’ request, and on 30 August 1991 Airbus Industry gave her the following reference:

“such a capable candidate. Estelle integrated extremely well, demonstrated great enthusiasm and worked very hard. She is a willing learner as well as being able to do a lot of work on her own initiative, notably in financing matters. We particularly appreciated her non-nonsense approach to problem solving ...”

On 12 March 1993 the claimant began a period of maternity leave giving birth to her first child, Angus, on 7 April 1993. She returned to work on 27 October 1993 and took up a position in the Business Development Area. On 18 July 1994 she again commenced maternity leave, giving birth to her second child, Christopher, on 29 September 1994, and returning to work on 20 April 1995. But approximately three months later she informed her supervising partner, Geoffrey White, that she was again pregnant. On 23 October 1995 Mr White wrote to her setting out concerns following a recent poor appraisal. His concerns related to her ability as a lawyer, identifying a perceived weakness in legal knowledge, and an inability to “distinguish the wood from the trees”. He expressed concern that she had not been prepared to discuss his concerns with him at a meeting, and said that the weaknesses that had been identified would be kept under review following her return from maternity leave. The maternity leave commenced on 13 November 1995; and on 18 November 1995 she wrote at length to Mr White taking issue with her last appraisal, and concluding that “I fear that you have an unsympathetic view of women taking maternity leave and I believe that you are prejudiced against me for reasons connected with pregnancy”. The response to that letter came from Mr Matthews, who said:

“ ... although I have no experience in your work it does seem to me from my discussions that the concerns regarding your performance are genuine and will need to be addressed on your return from maternity leave ... in light of the comments which you have made in your letter to Geoffrey White he feels, and I agree, that it would be appropriate for someone else to take over responsibility for your appraisals after your return ...”

The Claimant’s third child, Samuel, was born on 7 January 1996. On 4 March 1996 there was a further appraisal from Mr White whilst she was on maternity leave in which he said:

“legal knowledge not to required standard ... drafting feels needs further development ... legal research needs further improvement ... time recordings meets requirements ... however too much time spent on particular tasks. Not efficient ... good personal skills. A strong point. Mixes well on social occasions ... relationships with secretaries and other support staff probably up to standard ... experienced difficulties working with solicitors on the other side ... quality not to required standard ... future development – continue to build up legal skills ... keen to attend education courses”.

The Claimant returned to work on 19 August 1996, but on 6 December 1996 she left Clifford Chance following a negotiated Compromise Agreement and began what turned out to be a five year career break. The reference that she was then given by Clifford Chance was in the following terms:

“... began employment with the Firm on 7 September 1989 as an Articled Clerk … Estelle integrated well, worked hard and demonstrated great enthusiasm. She was a willing worker and able to achieve much on her own initiative notably in financial matters, with a well appreciated practical approach to problem solving ... Airbus were very grateful that Clifford chance had sent them such a capable candidate. On qualification Estelle joined the Firm’s Banking Department as an assistant solicitor from 9^th September 2001. She worked in this department until March 1993 (when she commenced maternity leave) ... she was engaged on intricate financial work ... much of this work was carried out under intense time pressure, often well into the early hours ... on 27 October 1993 she took up a position in the Firm’s business development area in which she was most successful until July 1994. Her excellent interpersonal skills and organisation abilities equipped her very well for this role and she developed good client relationships. She returned to the banking Department in November 1995 after a further period of maternity leave ... on her return from maternity leave in September 1996, Estelle became involved in pro bono work, and at that time expressed the wish to engage in other areas of the law for which there was little opportunity here. She also wanted to spend more time with her family ... she left on 6 December 1996 with the full support of the firm who wished her well in the future ....”

The Claimant’s fourth child, Jessie, was born on 18 April 1998. But her marriage to Charles Hamill-Stewart broke down during her career break; and on the rebound she met and quickly married her second husband Nick Clarke, a businessman based in the Midlands. She moved her family to the Midlands to live with him, and in March 2002 began working for a Leicester based law firm, Spearing Waite. Her employment at Spearing Waite was short-lived and ended acrimoniously, the claimant being summarily dismissed “…for gross misconduct for unreasonably refusing to carry out work ordered by Head of Department, by unreasonably seeking assistance of Senior Partner on work related matters in direct contravention of an order from the Head of Department in a frame of mind calculated to undermine the Head of Department.”. Her evidence was that she took the view that a transaction in which the firm was involved had what she perceived to be a fraudulent element, and should not be allowed to proceed. She took her concerns to the managing partner, but, as she put it “the situation became one of me choosing whether or not to go along with the transaction”. She refused to do so with the consequence that she was summarily dismissed.

The claimant appealed against her dismissal. Her appeal was dismissed; but she then issued proceedings against Spearing Waite seeking damages for wrongful dismissal. Her claim was settled by Spearing Waite at the end of 2003, by which time she had begun working for Cookson Ltd, a company owned by her second husband and involved in the distribution of beauty products.

In December 2003 the Claimant separated from her second husband, gave up work at Cookson Ltd and moved to Romsey with her children. Prior to her move she had secured employment as an associate solicitor at Blake Lapthorne, solicitors. As a term of her settlement with Spearing Waite, it had been agreed that the latter would provide her with a reference in an agreed form. It stated that:

“... we engaged Estelle Clarke with effect from 13^th March 2002 with a view to strengthening and extending our Commercial and Corporate Finance Department through her skills in banking and marketing work as evidenced at her previous firm Clifford Chance and reflected in our Legal 500 entry (2003 edition). Estelle immediately became involved with advising many of the firm’s major clients on a broad range of commercial and financial matters. She contributed effectively and enthusiastically to marketing initiates. Estelle left the firm in January 2003 to pursue her career elsewhere and we wish her well.”

On 21 January 2004, some nine months before the accident, the claimant began work at Blake Lapthorne as an associate solicitor. It will be necessary further to consider her progress at Blake Lapthorne at a later stage.

Following the accident the claimant returned to work at Blake Lapthorne in March 2005, initially for half a day, three days a week. In August 2005 an employment consultant, Sarah Wood of Chadwick Nott Global Legal Recruitment, sent the claimant’s CV to another firm of South Coast solicitors, Lester Aldridge with a covering letter stating:

“Reason for leaving: looking for a new challenge where she can further develop her legal skills whilst making the most of client care and marketing. Following: Estelle has excellent contacts and a good track record for winning work at tenders and is confident of her “rainmaker” abilities ... she has recently been given a promotion as a stepping stone to partnership. Estelle is looking for a long term career move where she can make the most of her marketing and practice development skills. Estelle is very confident in making the most of her contacts in both finance and aeronautics and has an excellent track record for winning work at tenders”.

The covering email said that she “is looking for a firm where she can make her final move.”

By September 2005 the claimant was able to work on a full time basis, but on 17 October she attended an interview at Lester Aldridge, and on 21 October was offered a senior Associateship on a salary of £65,000. On 1 November 2005 she was promoted to senior solicitor at Blake Lapthorne, but six days later she resigned from Blake Lapthorne and started a two and a half month period of gardening leave. Her reference from Blake Lapthorne stated:

“... Estelle joined us on 21 January 2004 and is employed as a Senior Solicitor. Her work during this time has always been of a good standard. Her file shows no evidence of disciplinary issues and I have no reason to believe her skills are anything other than satisfactory. During her last 12 months of employment she has had a significant period of absence due to a road accident. I’m pleased to say that Estelle seems to be over this completely. Her attendance, timekeeping etc. was all it should be prior to the accident and since her return ....”

On 17 January 2006 the claimant began work at Lester Aldridge as “Head of Corporate Banking” in Southampton.

In July 2006 the claimant was awarded a £1000 prize by Lester Aldridge as Business Developer of the Year. But her medical records contain a letter from Dr Nas Choudry, a consultant psychiatrist at the Marchwood Hospital, dated 20 July 2006, which contains the following account of her persisting psychiatric problems:

“She is describing all the hallmarks of a full blown PTSD which was extremely intense for the first 6 months with nightmares, flashbacks, avoidance behaviour and the “what if” scenarios. The chronicity of some of the residual symptoms have, I think, produced a depressive reaction and in many ways it is fortunate she did not have a significant head injury which I think would have worsened her prognosis.

…

In spite of the symptoms with which she has struggled she has done extremely well to remain within full employment and in fact appear to have had a promotion to her current position as Head of Corporate Banking with a major law firm. Nevertheless she does find situations, which should be easy for her to manage, at times a strain and cause her a guilt and distress

...

In terms of treatment she has had exposure to counselling in early 2005 for a period of 6 weeks she tells me, and in addition she has been through 4 months coaching with the counsellor at the surgery which was she feels beneficial to her. Nevertheless her symptoms are persisting and I agree with you that she could be helped by more intensive treatment related to the PTSD possibly in conjunction with the introduction of a safe SSRI antidepressant ...”

In December 2006, and as a result of restructuring at Lester Aldridge, the Corporate Team within which the claimant worked was transferred from Southampton to Bournemouth. On 12 December 2006 the claimant produced a business plan entitled “Corporate Banking Bournemouth – Raising the Game”.

On 2 May 2007 she saw her GP, Dr Powell, who noted:

“still really troubled by the huge impact this accident had on her life. Headache and dizziness still can be an issue. Feels needs more counselling and has had success through insurance – refer Dr. Choudry again as she got on well with him. No red flags in headache symptoms. Would also like to be re-referred to Mr. Hargreves as hand having huge impact on what she wants to do ...”

She was duly referred to Dr Choudry who on 7 June 2007 wrote to the GP saying:

“... I reviewed her at the Priory Hospital on the 5^th June. She has struggled since my last assessment of her and she continues to describe difficulties in coping. She tells me she can become excessively worried and concerned leading to problems in initiating activity. I was reminded that she was involved in a road accident ... subsequently developed a cluster of symptoms associated with PTSD but that the intensity of these symptoms have settled and I suspect she is now left with features of an adjustment problem with associated anxiety and possible depression. ... she is keen to move forward with her cognitive therapy in order to adjust accordingly ...”

Dr Choudry in turn referred her for cognitive behavioural therapy (CPT). Her first session was on 22 June 2007 when the therapist, Paul Murray, recorded:

“... symptoms of PTSD following RTA. Engaged well. Problems presented: tearfulness, anhedonia and avoidance. (illegible word) health anxiety. Cognitive (illegible word) catastrophising and black and white thinking. Presents no immediate risk of self harm. Introduced to the cognitive model and is able to see how this relates to self ...”

In the meantime, in May 2007 the claimant had been made a fixed share equity partner at Lester Aldridge. The recommendation from Michael Giddins that she be made a partner contained the following:

“Estelle Clarke – recommendation for fixed share partnership ... she arrived with an empty desk and has worked hard and energetically to build up her practice. In the first 11 months of this financial year she has billed £158,000 and will probably do at least £180,000 for the year. This is nearly all work she has generated ... she works phenomenally hard: 1230 chargeable hours in the first 11 months, 2144 hours in total. She is a keen networker and attends numerous BD events. She is driven and ambitious ... I am glad to recommend her for fixed share partnership”.

On 12 July 2007 Dr Choudry wrote again to the Claimant’s GP saying:

“... she is engaged in individual cognitive therapy with Paul Murray here at the hospital. However, she continues to struggle with what appear to be anxiety and depressive symptoms and these are producing some difficulties at her place of work related to frustration type behaviours. I do feel she could be helped by a safe anti depressant ... she remains reluctant but I have asked her to discuss this matter further with you ... I have also suggested to her that in view of the difficulties at work that she might want to consider 4 to 6 weeks away from employment to allow the therapy to be productive without the pressures of work ...”

Two months later, on 6 September 2007, the claimant was offered a fixed share equity partnership at Thomas Eggar, solicitors; and on 13 September 2007 her CBT came to an end, her therapist writing in his discharge summary:

“... Estelle presented with depressive/anxiety related problems with a marked health anxiety that she coped with principally through avoidance. There have been significant changes in her beliefs and behaviour as she started to challenge her beliefs. She experiences far fewer symptoms now and is able to have what she considers a ‘normal’ life. It was agreed that discharge from therapy was appropriate ...”

On 1 November 2007 she resigned from Lester Aldridge, and in February 2008 was put onto gardening leave, finally leaving Lester Aldridge on 30 April 2008, and taking up the offer of a fixed share equity partnership with Thomas Eggar on 1 May 2008..

On 19 February 2009 the claimant saw Miss Levett, a clinical psychologist, who carried out a psychological assessment. Miss Levett recommended a course of CBT and cognitive rehabilitation. At the date of trial Miss Levett, who gave evidence, was continuing to treat the claimant. At the beginning of June 2009 the claimant raised the possibility of going onto a 3 day working week for a period of 6 to 12 months with Neil Hart, her former managing and supervising partner at Thomas Eggar. She did so on the advice of Miss Levett. Her appraisal dated 22 June 2009 contained the following passage:

“Estelle agreed that her first year in the firm had gone well in terms of the establishment and development of her own practice and Nicola Burden ... in Estelle’s view, what she and Nicola Burden have achieved in the first year is only the tip of the ice berg. She confidently expects the turnover and the size of her team to increase, and that is her ambition ... Neil ended this part of the meeting by recognising Estelle’s’ success in establishing her practice in her first year with TE, and delivering time and billing targets for herself and Nicola Burden in the extremely difficult climate that we found ourselves in. The conversation then turned to tensions within the Southampton Corporate Commercial team. Estelle felt that she worked well with all the members of the team ... with the exception of Caroline Armitage ... almost from the outset, Estelle had found Caroline to be negative and hostile towards her, actively working against her and denigrating her with other members of the team. Estelle had found this very difficult to deal with, and her method now of dealing with it is to isolate herself, her clients and her practice as much as possible from Caroline. In Estelle’s words the one thing she wanted Tony and Neil to do was to ‘get Caroline off her back’ ... the conversation turned to Estelle’s proposal that she works 3 days a week. This is for a period of 6 months or so, which Estelle is requesting for personal reasons. It is not a long term arrangement. Neil asked whether her desire to go down to a three day week was partly as a result of the difficult and unsatisfactory relations with Caroline Armitage? Estelle said that it was a factor, but not the driving factor. Neil said that the one concern he had with this proposal was that Estelle may find that she puts in just as much work and effort into her practice, notwithstanding the three day week, while only receiving remuneration for three days a week. She would be the loser and could get frustrated as a result ....”

On 1 July 2009 she began working a three day week.

Miss Levett’s notes for treatment on 19 December 2009 record:

“Off sick since Tuesday. For 1^st time not bothered at home by calls from work. Feels much better (illegible shorthand) house quiet. Not talking to people. Sleeping more. When children come in from school “speech free zone”. Blocks of 10 minutes. Children agreeing. Will I be able to work again as a solicitor? Will I ever not be tired? Next 3 months work on PTSD. Increase management of cognitive problems and fatigue in home initially”.

On 5 January 2010 her GP certified her unfit for work for four weeks, and a month later certified her unfit for work for a further two months. She was therefore not working at the date of trial.

The symptoms from which the claimant continues to suffer

The cognitive dysfunctions were accurately summarised in the schedule of loss and damage, a summary derived from the claimant’s witness statements.

“4(A) Mental fatigue – she is constantly mentally fatigued, though the level of fatigue is variable; the effect is cumulative. She feels unrefreshed upon waking in the morning and feels progressively more tired throughout the day. She finds herself wanting to sleep during the day. Sustained concentration or intellectual activity hastens the fatigue process. At times the fatigue can be overwhelming. When working full time, she was unable to elicit any energy for her children upon returning home in the evenings and was invariably bad tempered because of this. She was shattered on the weekends and spent much to the time resting to prepare for the week ahead. She cancelled most social engagements to facilitate this. She has put off her wedding plans to her fiancé, Martin Tiffin, because she cannot find the energy to organise the celebration. The fatigue is the single most disabling consequence of the accident and the cause of her approaching her Chairman in the summer of 2009 to request a variation in her contracted hours of work to 60% of a normal working week on a trial basis on the advice of her treating Clinical Psychologist (see paras 46-47 below). It was the cause of her being signed off work on the ground of her health with effect from 05.01.10. When fatigued, her other cognitive and behavioural dysfunctions (see below) are accentuated.

(B)

Disinhibited temper – before the accident she was even-tempered. Since it, she is now prone to losing her temper in a ‘ballistic fashion’ over trivial cues, generally at home rather than at work. She uses expletives during these rages, which are often directed at her children. It includes physical violence towards objects such as smashing crockery in the kitchen or slamming doors. She rarely apologies for her outbursts. All this is quite inconsistent with her demeanour and temperament before the accident. Even in the office she was known to have a short temper and to be rude and ratty, even to those beneath her who were unable to answer her back. This saddens her.

(C)

Impaired short and medium term memory – her memory is not as sharp as it was. She finds herself having to read and re-read written text. It is much more difficult for phrases and quotations to stick in her short term memory. At work she found herself having to make copious manuscript notes when collating her ideas. This was never necessary before and it slowed her down and compromised the quality of her work. She became much more reliant on her former secretary to organise her appointments. She uses ‘Post-It’ notes prodigiously and an iPhone as ‘aid-de memoirs’ for deadlines, chores and appointments when before this was not necessary.

(D)Impaired concentration – this is an adjunct of the impaired memory. She has difficulty with divided attention and multi tasking and finds her concentration is now much more easily broken. She finds it difficult to filter out extraneous distractions such as the background noise of an open plan office or the noise of her children at home. She tried to combat this by working in ‘break-out’ meeting rooms in the office, a practice which was discouraged.

(E)

Impaired processing function and speed/inability to multi task – she has experienced a slowing down of her ability to think and to recall and analyse information.

(F)

Compromised language and speech – Before the accident she was remarkably fluent with an expansive lexicon. Since it she has frequently found herself unable to retrieve the word she wants. She has developed a number of coping strategies to try to combat this difficulty such as preparing detailed notes for meetings, both with clients and with other Partners; she also, particularly when fatigued finds herself talking in a simpler form of ‘dumbed down’ English so that she will not get caught lost for a particular word. Spontaneity of speech is a very important part of her armoury as a lawyer and her word finding difficulties have been a source of acute anxiety to her.

(G)

Disinhibited speech – she will say inappropriate things that will often offend. For example when a Partner at TE spoke about a fee earner’s redundancy in 2009, she told her that it ‘was okay because he was only being made redundant’. She has developed a degree of emotional blunting.

(H)

Impulsive spending habits – she has become much more impulsive in her spending habits, often purchasing expensive items that she neither needs nor can afford without first weighing up the pros and cons of the purchase. For example she purchased a new Volvo estate when she could ill afford to do so. She also almost made an offer on an adjoining property when she did not have the credit to contemplate the purchase. Recently she spent £199 on a pair of jeans for one of her boys only to realise later how inappropriate that was and the sent them back to the shop to get a refund. She is more profligate with money.

(I)

Impaired organisational/planning capability – she copes poorly with changes in plans and when working was extremely reliant on her secretary Collette Donovan (who has now resigned), previously Cindy Phillips, and Wendy Arnold.

(J)

Obsessional behavioural traits – Before the accident Dr. Davies observed that she had mild obsessional traits that made her so determined and driven. Since the accident she has developed a number of odd obsessional rituals and ordering complexes that did not exist before the accident.

(K)

Alcohol intolerance – she has become intolerant of alcohol since the accident. A glass of wine will induce a hemicranial throbbing headache within a short space of time. This was not the case before the accident. ”

The defence counter schedule called into question the genuineness of the symptoms described by the claimant. It asserted that she had sustained at most a minor brain injury which did not cause any significant lasting organic brain dysfunction, and that she has had psychiatric problems since the accident which it is hard to disentangle from her pre-morbid condition. The implication was that she was deliberately exaggerating her symptoms. The counter schedule contained the assertion that the decision that she took in July 2009 to reduce her working hours to 3 days a week “seems to have been taken only after the claimant changed her lawyers and re-vamped her case”, the inference being that the decision was the product of, or at least influenced by her solicitors’ encouragement to her to inflate the value of her claim. Furthermore in the course of cross-examination counsel for the defendant put it to her that she had exaggerated her symptoms to Miss Levett.

The suggestion of deliberate exaggeration of her symptoms was modified in the defendant’s closing submissions, in which it was suggested that this was a case in which the ‘reality of the symptoms is often less than how she describes them.’

The assertion of exaggeration on the part of the claimant, either conscious or unconscious was not pleaded. Secondly it was unsupported by any evidence from the defendant’s experts. On the contrary each accepted in terms in cross-examination that there was no exaggeration of her symptoms on her part.

Moreover the claimant’s account of her symptoms was supported by a number of lay witnesses called to give evidence on her behalf, her mother Anne Phillips who is a specialist speech and language therapist, her older sister Andria Maidment, Tania Mandell, whom she met in a professional context as a client of Blake Lapthorne but who became a personal friend, Wendy Arnold her PA at Lester Aldridge, Cindy Phillips her PA at Thomas Eggar, Caroline Tanner a friend since school days, Nicola Burden a legal executive with whom she worked both at Blake Lapthorne and latterly at Thomas Eggar and Martin Tiffin her fiancé whom she met when he was a partner at Lester Aldridge. Their evidence provided clear and strong support for hers.

Finally in this context the claimant gave evidence over 4 days for periods totalling in excess of 8 hours, the vast majority of which was under cross-examination. That gave me the opportunity to observe her closely. Her difficulties, in particular her fatigue and fluctuating levels of concentration, were both obvious and obviously genuine. I also saw examples of her difficulty in finding words. I emphatically reject the suggestion that there has been any exaggeration, whether deliberate, or as is now suggested unconscious. In the circumstances, and bearing in mind in particular the acceptance on the part of each of the defendant’s expert witnesses that there was no exaggeration on her part, such an assertion, plainly distressing to a solicitor, an officer of the court, ought never to have been made.

Are such symptoms attributable to the accident?

What is the cause of such symptoms?

The attribution of the symptoms remains an issue between the parties. The Claimant’s experts, Dr. Harvey and the clinical neuro-psychologist Professor Morris, are of the opinion that the continuing symptoms are attributable to traumatic brain injury. The causative mechanism was explained by Dr. Harvey.

“She exhibits some of the features of a frontal lobe syndrome caused by damage to one or both frontal lobes, with or without damage to the temple lobes as well. This is caused by impaction of the soft brain onto the inside of the hard skull at the front, in accidents involving acceleration and deceleration forces, usually in a front to rear orientation. If damage occurs particularly to the underside of the frontal lobe, where it rests on the bony plates separating the skull cavity from the eye sockets, the infero-orbital region, then a very characteristic pattern of behaviour is seen.”

Dr. Foster, the neurologist called on behalf of the defendant, takes a different view. He accepts, as was reflected in the joint statement of the neurological experts, that since the accident the claimant has complained of a number of cognitive, emotional and behavioural changes. But in his opinion she suffered a minor traumatic brain injury which was unlikely to cause any enduring organically-determined neuropsychological symptoms, and that her ongoing symptoms are, on the balance of probability, attributable to non-organic factors.

It is therefore appropriate first to consider the expert psychiatric evidence. It is common ground that the claimant has suffered from both depression and PTSD as a result of the accident. The question is whether and to what degree she has recovered from those conditions. If she has made a substantial recovery from such psychiatric conditions, but still continues to suffer from cognitive, emotional and behavioural disturbances, it must follow that they are attributable to the traumatic brain injury, a conclusion compelled in logic as was eventually, and it has to be said reluctantly, accepted by Dr. Foster.

The claimant relied upon a consultant psychiatrist, Dr. Gaius Davies. Dr Davies saw the claimant on two occasions in December 2007 before preparing his first report of 4 January 2008, on each occasion for about 2 hours. He re-examined her on 19 January 2010 before submitting a supplementary report dated 27 January 2010.

His first report contains a comprehensive account of her family background, her occupational and marital history and his assessment of her personality. He formed the impression that she was “formidably intelligent, very perceptive and pleasant, and that her considerable achievements may have made her liable to what are sometimes called the pressures of success.” He concluded that she had a severe chronic PTSD and secondly a major depressive disorder of a severe and chronic type. His diagnosis was based on a detailed history in which he identified a number of significant features, flashbacks to the scene of the accident, nightmares, suicidal feelings, problems of recall describing ‘only islands of memory in an ocean of black”, and feelings of detachment in particular from her work. He recorded that she believed that there was no tomorrow:

“She said ‘I used to have a future like meadows rolling out ahead of me’. But now she could not see next year or plan it intelligently; at work she knows what to do, but she cannot trust it … She added ‘no one can hurt me, the only thing that matters is my life and love for the children, but the whole landscape has changed.”

Dr Davies thought that this illustrated the foreshortening of PTSD. Sleep was a problem. So too was anger displayed in frequent irritability with her children, her fiancé and those around her. “She feels very angry with others and what was new was that her anger now ‘felt like an explosion within her’”. She told Dr Davies that her concentration was something she used as a tool to stop the black feelings overwhelming her.

At that stage Dr Davies expected that the prognosis for the depressive illness would be very good. He also expressed the view that the PTSD would be improved by medication, and that cognitive behaviour therapy (CBT) would greatly improve the prognosis both in relation to depression and PTSD.

By the time that Dr Davies saw the claimant again in January 2010 she had been undergoing CBT with Miss Levett for about 9 months. Dr Davies had the benefit both of seeing Miss Levett’s treatment notes and of discussing the claimant’s response to treatment with her. On re-examination he found that she had recovered from her depressive disorder, and had made substantial progress in recovering from PTSD. She was still suffering symptoms of PTSD when exposed to certain cues or stimuli that remind her of the accident; but he considered that with further treatment there would be a complete recovery from the stress symptoms related to that condition.

He identified a number of continuing symptoms which he summarised in the following terms:

“The outstanding problems now seem to me to focus on a cluster of symptoms to do with her problems with fatigue and the way that this affects her capacity to work effectively. She has what she calls ‘ballistic rages’ mainly confined to home, but she dreads that she might have an episode similar to these at work. At work there are reliable reports of her being forgetful disorganised and suffering from frequent bouts of frustration which leads directly to low grade anger and being snappy and difficult with colleagues.

A number of witnesses … report not only forgetfulness but difficulties in finding the normal range of words in conversation (a phenomenon that may be worse when she is tired, as she so easily is at work and at leisure), and a degree of disinhibition whilst speaking casually to friends, together with a lack of understanding of the fact that such behaviour can be embarrassing close to her.”

He concluded that her fatigue and her related cognitive problems did not seem in any way to be mood related, and he considered that they are best explained by a mild or subtle brain injury.

In this context the evidence of the clinical psychologist, Miss Levett, who has been treating the claimant during the past year, is of considerable value. On 2 March 2010 she wrote to Dr. Powell, the Claimant’s GP, summarising her initial assessment of the claimant and the treatment that the claimant has undergone in the past year. There are a number of passages in the letter which are of particular relevance:

“At assessment in February/March 2009 Mrs Clarke was found to be suffering from a range of functional cognitive deficits including deficits of various types of memory, concentration, organisation and planning, decision making, multi-tasking, logical sequencing, geographical orientation, reading, tracking of group conversation, self expression and word retrieval difficulties. Such deficits were present in situations where they could not be accounted for by anxiety and so called low mood and were particularly noticeable in the work place. She was also suffering from heightened mental fatigue, and personality changes characterised by heightened irritability, temper outbursts and impulse behaviour.

Psychologically she was suffering from major psychopathology as described by DSN-IV.TR. This included a chronic Post Traumatic Stress Disorder, associated Agoraphobic-type systems with Panic Attacks. Obsessive compulsive symptoms at sub-clinical level, chronic anxiety associated with a medical condition (neck fracture) and embarrassment at scarring. She no longer suffered from a Depressive Disorder.

…

Mrs Clarke has been treated for her emotional disorders with a tailored mixture of the cognitive behaviour therapies, including in vivo exposure and response prevention. She is progressing well and this treatment is ongoing. In addition she has been treated for symptoms of cerebral injury with rehabilitation techniques designed to enable her to better manage her cognitive deficits and heightened mental fatigue. She has also received anger management training and has developed improved means of coping with frustration. She has engaged well with the treatment process, has attended regularly and has carried out all her homework assignments as requested. ”

Miss Levett went on to explain in the letter that when she carried out her initial assessment the claimant was working on a full time basis, but that her attempts to maintain her performance had led to significant fatigue, persisting headaches, low mood and a sense of failure and frustration. Miss Levett therefore suggested that she take 3 months off work to concentrate on her recovery, and to learn to manage those difficulties from which further recovery was unlikely. The claimant was initially reluctant to follow that advice but eventually accepted the suggestion that she reduce her working hours to 3 days a week. Miss Levett explained that the purpose of reducing her working hours in that manner was to monitor her levels of fatigue during reduced working hours, so as to enable her to gauge her performance with work which could be carried out in a 3 day week, while gaining increased ability to manage the range of cognitive demands on her. But she recorded that the demands of functioning in her specialist field were such that, despite her efforts, she had been unable to restrict her hours to a 3 day week and had essentially continued to work a 5 day week. She eventually took sick leave on Miss Levett’s advice, and in January 2010 finally agreed to take 3 months off work.

Miss Levett also gave evidence in which she amplified the contents of her letter to the claimant’s GP. She explained her treatment, and identified the particular difficulty in treating the claimant, namely in differentiating between the psychological symptoms attributable to the PTSD and those attributable to the cerebral injury, explaining that the claimant herself needed to make such a differentiation so that those attributable to PTSD could be effectively treated, and those attributable to the cerebral injury managed by her. She agreed with Dr Davies that the prognosis with regard to the symptoms of PTSD is good, and that the symptoms are now at a sub-clinical level.

I found Miss Levett to be an impressive witness who gave her evidence in a thoughtful and considered manner. Furthermore it was entirely consistent with the evidence given by Dr Harvey, Dr Davies and Professor Morris.

In marked contrast I found the evidence given by the consultant psychiatrist called on behalf of the defence, Dr Gill, unimpressive, not least in the manner in which he changed his position as to whether his approach to making a diagnosis differed when carrying out an examination for the purposes of a medical report to the court, from that adopted by him in a clinical setting. But in any event he agreed at the conclusion of his evidence that he was ‘pretty close’ to Dr Davies, and that the only disagreement between them was as to the effect of the remaining PTSD symptoms. That is not a disagreement of significance given that it is common ground that the residual symptoms are now at a sub-clinical level.

I am therefore satisfied that the claimant has made a full recovery from the major depressive disorder, and that the symptoms of PTSD are now at a sub-clinical level, in that although she continues to experience flash backs they have reduced in frequency and severity, and that there has been an improvement in the number of triggers which induce panic responses. In the longer term she can expect to make a full recovery from her PTSD.

It follows that save for the residual symptoms of PTSD, the continuing symptoms cannot be attributed to a psychiatric condition. How then are such symptoms to be explained? Dr Harvey’s conclusion is clear. His initial view, expressed in his first report, was that the complaints of cognitive and behavioural disturbances were consistent with the claimant having suffered a degree of traumatic brain injury, particular to the frontal lobes. As I have already observed, he was at that stage alert to the possibility that some of her symptoms could be explained by her depression, anxiety and PTSD. But that issue has been resolved, and his current view as expressed in the joint statement by the neurological experts is that:

“… this was a substantial traumatic brain injury… and that a significant proportion of her ongoing cognitive, emotional and behavioural disturbances are determined by the aftermath of traumatic brain injury.”

As he said in evidence:

“What I can say is that her symptoms are compatible with her having suffered a mild degree of impairment of brain function, particularly in the frontal lobes. There is corroborative evidence in the neuro-psychology. The damage is going to be diffuse and mild.”

Dr Foster, the consultant neurologist instructed on behalf of the defence, takes a different view. His opinion as summarised in the joint statement is that:

“… on a balance of probabilities this was a minor traumatic brain injury which was unlikely to cause any enduring organically-determined neuro-psychological symptoms. Dr Foster is of the view that her ongoing symptoms are on the balance of probabilities attributable to non-organic factors.”

But the difficulty with his analysis is obvious. If non-organic factors can now be ruled out, as in my judgment they can be, he has no explanation for the continuing cognitive and behavioural problems other than traumatic brain injury. Furthermore he conceded in cross-examination that even if the case can properly be categorised as ‘mild brain injury’, it is nevertheless possible that the enduring symptoms, if genuine, as I have found them to be, are directly attributable to traumatic brain injury.

In those circumstances it is not necessary to consider the factors indicative of traumatic brain injury which was canvassed in the cross-examination of Dr Foster. Suffice it to say that there was nothing in the claimant’s presentation that is inconsistent with traumatic brain injury.

It follows that I have no hesitation in preferring the evidence of Dr Harvey on this issue. As I have already indicated the most compelling reason for doing so is that, in the absence of a psychiatric cause for the symptoms, Dr Foster could not advance any reasoned explanation for the continuing symptoms.

I am reinforced in that conclusion by the evidence from the consultant neuro-psychologist, Professor Morris, who supported the conclusion at which Dr Harvey had arrived. Professor Morris gave his evidence in a conspicuously careful and considered manner. I do not consider that the same can be said of the psychologist called on behalf of the defence, Dr Skelton-Robinson. Both carried out formal neuro-psychological testing. Both found deficits, but disagreed as to their clinical significance. They did agree as to her presenting symptoms since the accident.

“We agree that she has since the head injury had a variety of presenting symptoms. These have included problems of memory and organisation, specific word finding difficulties, poor concentration, fatigue, problems with her temper and noise sensitivity. We also agree that she has had psychiatric difficulties that include depression and defer to the psychiatric opinion concerning their diagnosis. We disagree on the causation of the above list of symptoms, with RM suggesting a result from the combination of the effects of neuro-psychological and emotional difficulty and MSR suggesting that they reflect a combination of emotional difficulties and the fact that she has been cognitively challenged on occasions in the past by examinations and work responsibilities.”

Paragraph 12 of the their joint statement is in the following terms:

“We disagree in terms of prognosis and future occupational capability. We agree that she is capable of working full-time as a solicitor. RM thinks that she will have residual neuro-psychological impairment that will make her less efficient in work and contribute to her being less effective and less successful as she would have been had the accident not have occurred. Added to this are emotional and psychiatric difficulties which have been amenable to treatment and understands that she is still being treated. MSR thinks it is highly improbable that there are any enduring neuro-psychological impairments resulting from the accident. Current difficulties with occupation should he believes resolved by successful psychological treatment, and that she will in the future be capable of resuming full-time employment at her former level of competence.”

The defence naturally attach weight to the sentence in the joint statement of the neuro-psychological experts expressing agreement that the claimant is capable of working full-time as a solicitor. But in a letter of clarification dated 11 March 2010 Professor Morris further explained his position:

“I realise that in item 12 of the joint statement I may have given the impression of a different interpretation to the one I intended. In the second sentence we make the statement ‘we agree that she is capable of working full-time as a solicitor’. I realise in hindsight that this statement may give the impression that full-time work is suitable for her. I meant to agree more literally that she is capable of full-time work as a solicitor and I think her employment history makes this evident, in that she has been able to work full-time. I was responding to the opinion of Dr Martin Skelton-Robinson by agreeing with him, but in reality we disagreed. I can see that in a legal context ‘capability’ might suggest a long-term robust prognosis, but this is not my opinion.

She has not functioned well taking into account the broader picture and I think her neuro-psychological impairments will make her likely to face considerable difficulties in the future. In this sense, I think on balance, her level of work relating to her previous employment is not sustainable in the long run because of her disabilities. In this regard, it is a more realistic option in terms of her achieving a reasonable quality of life and long-term sustainability in terms of employment as a solicitor that she works part-time. In summary, I believe there is distinction between capability in what she can realistically achieve in the long run.”

I should add that at the outset of his evidence Dr Skelton-Robinson stated that in his report he had speculated about the claimant’s future career, such speculation being based on material that he had found in her personal records, but added that he did not now wish that evidence to stand.

I regret to say that I found Dr Skelton-Robinson a most unimpressive witness. He expressed the opinion in his report that the claimant had sustained a head injury that would be classified as mild. Yet it emerged in cross-examination that he had not taken a history directed at ascertaining whether there had been post-traumatic amnesia, an important indicator of the severity of a head injury. He also conceded in cross-examination that he had not cross-checked the history that he was given by the claimant with the medical records, saying “I stand corrected – I should have done so – my lack of appreciation of them may be a defect in my evidence.” There were also other features of his evidence that called into question his objectivity. By way of example counsel for the claimant took him to a passage in his report in which he stated that the personnel from Spearing Waite had increased his scepticism about the claimant’s reliability. That clearly indicated that he had approached her case with scepticism from the outset. He also accepted that his response to Part 35 questions put to him by the claimant’s solicitors was a deliberate put down for which he apologised. As to the substance of his report he agreed that he elicited a very similar pattern in the results of his psychological testing to those obtained by Professor Morris, but disagreed with the interpretation of the discrepancy revealed by such testing. In simple terms the discrepancy was between her IQ and her memory function, her IQ falling within the top 3% but memory function in the top 50%. As I understood his evidence, he took the view that it could not be assumed that the discrepancy was the consequence of traumatic brain injury, and could have been present before the accident. But that was to disregard the evidence from the claimant and others as to the excellence of her memory prior to the accident, the claimant in particular having described it as ‘photographic’.

Insofar as there was a conflict between the evidence of Professor Morris and Dr Skelton-Robinson I prefer that of Professor Morris who both reported and gave evidence in an authoritative and objective manner.

The Prognosis

What is the effect of the continuing symptoms upon the claimant’s capacity to function as a solicitor in private practice?

The argument advanced on behalf of the defence is in essence that her employment history since the accident demonstrates that she can continue to function as a solicitor in private practice, undertaking demanding transactional work. Reliance is placed upon her engagement by Lester Aldridge as ‘Head of Corporate Banking’, to her being made a fixed-share partner at Lester Aldridge, followed by her move to Thomas Eggar as a fixed-share equity partner. The defence also point to the favourable appraisals that she received at Blake Lapthorne, Lester Aldridge and Thomas Eggar and upon the evidence as to her increases in salary.

But the argument that her career path since her return to work demonstrates that her capacity to function as a solicitor conducting transactional banking work at partner level is not impaired, is superficial and lacks insight into the claimant’s condition. The claimant was a highly intelligent, strongly motivated woman, her skill and experience being complemented by an attractive and outgoing personality of considerable value in terms of client relationships. She remains a person of high calibre, but her ability to sustain a demanding practice is in my judgment compromised by the limitations imposed by her cognitive deficit. A clear pattern has emerged in which she moves firms seeking a fresh start to which she can commit herself with her characteristic energy. But it takes its toll. The pattern is clearly illustrated by the contrast between her apparent success at Thomas Eggar, demonstrated by her appraisal of 22 June 2009, see paragraph 31 above, and the series of treatment notes made by Miss Levett both preceding and following that appraisal which clearly illustrate the problems that she was experiencing in sustaining the requisite level of performance. The true position was succinctly summarised by Miss Levett in her oral evidence in the course of which she said:

“The main symptom at work she said that she was at the point of desperation in coping with the excessive fatigue she was experiencing.

The first issue to be addressed was Mrs Clarke’s sense of total frustration and inability to cope …her understanding of knowing which symptoms fell into which packages enabled her to control it so that she could control her difficulties.

She was very distressed on (sic) her difficulties at work. She felt there was something to do with her not being able to try hard enough. She blamed herself for the problems she was having. Once she understood what was going on, not immediately but fairly quickly began to stop blaming herself.”

It is clear to me that until undergoing lengthy treatment with Miss Levett, the claimant had not fully understood, and certainly not accepted, that she has limitations resulting from the injury to her brain.

As to the medical evidence, Dr Harvey and Dr Foster did not express a view in their joint statement as to the impact of the cognitive deficit on her working capacity, regarding that as a matter for the court. But Dr Harvey made an illuminating observation in the course of his evidence namely:

“The problem is that people with high functional intellectual responsibilities, even a slight decrement in ability can produce seemingly catastrophic results whereas the same apparent disability in someone with a lower IQ to start with may be relatively unscathed.”

In the course of cross-examination Dr Davies touched on the contrast between her apparent performance at work and the effect of the continuing symptoms –

“I think it reflects the high level of abilities she has had, the extremely high drive she has shown to succeed whether it is sailing or to achieve in his private life and this drive was sufficiently strong for her to fight these symptoms with a good deal of success. She was able to conceal the symptoms from her colleagues and then I believe that this Titanic fight as I think of it she has now lost. She cannot cope with it as she did before because she is now having to face up to the permanent consequences of her cognitive problems and cognitive behaviour in various ways and that has made her much more distressed in several ways in the last 6 months or so.”

Similarly Professor Morris expressed the view in the course of his evidence:

“It is an established understanding that those in high end jobs are vulnerable to subtle TBI (traumatic brain injury).

Her neuro-psychological weaknesses make it difficult for her to function in the profession she has chosen. I recommend she compensates by working part-time.”

That appears to me to be a sound analysis of the present position, entirely consistent with Miss Levett’s experience in treating the claimant.

In my judgment the evidence compels the conclusion that the claimant will not be able to sustain the required level of performance as a solicitor undertaking transactional work in the field in which she has specialised. The concession made by the defence that she would be acting reasonably if she were to withdraw from private practice and take up less onerous employment was well made.

The claim for loss of earnings

The move to London

Her career prospects were reviewed by a specialist legal recruitment consultant, Richard Ziegler, whose expert report was commissioned jointly by the parties. Mr Ziegler is a solicitor formerly employed by Nabarro Nathanson and Pinsent Curtis, but who for the past 10 years has worked for EJ Legal, a specialist legal recruitment consultancy of which he has been an associate Director since 2005. His principal role is to place lawyers into city and central London law firms. During the period for which he has worked for EJ Legal he has placed lawyers into Magic Circle, Silver Circle, US, medium and small size city, Mid-Town and West End law firms at all levels from newly qualified lawyers to equity partners. He was instructed on a joint basis to provide an opinion on the likely career options available to the claimant on the assumption that the accident had not occurred, secondly to indicate in percentage terms the likelihood of her achieving her career aspirations of becoming a partner in a city law firm and to quantify the value of the remuneration package that she would be likely to have achieved had the accident not occurred.

It was clear to him that the claimant is a high achiever, who presented very well and had all the attributes that he would look to see in a successful partner. He commented that she came across as an excellent communicator with good people skills, that she had a confident, positive manner and was both persuasive and highly credible. He was particularly struck by “her passion, enthusiasm and determination to succeed in her career”. He saw the key to her career development as being promotion to senior solicitor and then to partner at Blake Lapthorne in Southampton and then in London. He noted that she had clearly made a very positive start at Blake Lapthorne, and went on to comment that:

“Her career history since the accident has undoubtedly impacted on her practice. A period of recovery from the accident, then two further moves within a relatively short time and two periods of gardening leave. Then the disruption of working from two offices at Thomas Eggar without secretarial support and the impact the accident has had on her ability to perform her job. In the past year most lawyers have found it difficult to maintain their billing levels yet Estelle and her assistant have both achieved their first year targets, whilst several other lawyers at her firm have failed to do this. Her success at both Lester Aldridge and at Thomas Eggar, despite all the obstacles in her way, suggest to me that she would have been successful at developing a practice at BLL.”

His conclusion to his report contains the following:

“I would have expected Estelle to make a move to a medium size central London or city law firm at some point in 2006 or perhaps even as late as 2007 from the position of being a partner either at BLL in London or Southampton. My further expectation is that she would have been joining a firm either as a salaried or fixed share equity partner.

…

I believe it is also possible that at a future point if Estelle had developed a successful practice she could have moved to a larger city or central London law firm.”

As to his instructions to indicate in percentage terms the likelihood of becoming a partner in a city law firm, he assessed her prospects of becoming a partner at a Silver Circle firm at 0% - 10%, as a large/medium size city or central London law firm at 25% - 35%, but as a partner at a medium size city or central law firm at 80% - 90%. He gave his reasons in the following terms:

“I believe that it is highly likely that Estelle would have moved to a medium sized central London or city law firm as a partner and have developed a successful practice. I would define these firms as having 30 – 70 partners. As an indication I would suggest firms in this category would have ranged from 50th – 100 of the central London or city firms in the UK top 200 Lawyer.

Firms closer to 100^th position in the UK top 200 have small banking teams. Although her aspirations were to be in a larger banking team it is precisely the firms in this category who I believe would have been most interested in recruiting Estelle. Firms in this category would be looking for her to show that practice would generate three times her remuneration. If she was confident of achieving this I believe I would have secured her a large number of interviews at firms in this category in 2006.

These firms would have liked the fact that she had trained at a Magic Circle firm (evidence of a good pedigree) and as they are likely not to have any significant bank client relationships would have found Estelle’s borrower and investor client base attractive. She also would have been able to develop opportunities for borrower work from the firm’s corporate client base which may not have been exploited. The smaller the firm the more flexible they normally are about charge out rates and I believe many firms of this type would have accommodated different charge out rates for different clients.

If Estelle was a partner at BLL in London or in Southampton I believe it is highly likely that she could have made the move to a partnership position at a firm in this category.

It is possible that because the interest I believe would have been shown in Estelle if she was presenting to firms a sizeable following, she may have been offered an equity partnership or at the very least would have progressed from salary to equity partner very quickly.”

Notwithstanding that Mr Ziegler was jointly instructed, it was not accepted by the defendant that his evidence accurately reflected her career prospects. An attempt was made to disparage her educational qualifications, an attempt that was in effect dismissed by Mr Ziegler. Secondly an attempt was made to disparage her career at Clifford Chance; the argument being advanced was that it was not a success and that that is a clear pointer to what could have been achieved in the future. That too was an argument that was rejected by Mr Ziegler; and I accept his evidence. Mr Featherby also sought to argue that a return to London would have been highly unlikely given her 5 year career break, but Mr Ziegler took full account of the break in arriving at his conclusion.

Mr Featherby argued that Mr Ziegler’s conclusions as to the claimant’s prospects of a move to a London firm were dependent at least in part upon her bringing clients with her. As Mr Ziegler said in the context of her prospects of her becoming a partner at a medium size city or central London law firm:

“These firms would have liked the fact that she has trained at a Magic Circle firm (evidence of a good pedigree) and as they are likely not to have any significant bank client relationships would have found Estelle’s borrower and investor client base attractive.”

He argued that the claimant had exaggerated her client base to Mr Ziegler when identifying a number of clients at Blake Lapthorne as ‘hers’. Mr Treherne gave evidence that they were all clients of Blake Lapthorne before she joined the firm. This issue was not explored with the claimant in cross-examination so that she did not have her opportunity to explain what she had said to Mr Ziegler, but in any event the issue is whether she was likely to have had a client base that would have moved with her had her career at Blake Lapthorne progressed as she had hoped that it would before it was disrupted by the accident. Thus Mr Ziegler was necessarily assessing her prospects on a hypothetical basis. He also took account of her success in building a practice both at Lester Aldridge and at Thomas Eggar, notwithstanding the limitations imposed by her continuing symptoms. Whilst the claimant may have been over-stating her position, I do not consider that that undermines the conclusions at which Mr Ziegler arrived. They were based upon a careful assessment of the claimant’s attributes, her career to date and his intimate knowledge of the market.

Mr Featherby also raised a question as to the state of the market in legal services at the point at which the claimant would have been intending to move. That was taken into account by Mr Ziegler. He acknowledged that a lawyers ability to make the transition upwards to a bigger or more successful law firm is very dependent on market conditions, but added that a buoyant economy creates a high demand for lawyers, allowing lawyers from regional firms to move more easily to London and likewise lawyers from smaller London firms to move to larger city firms. He observed that at the time that the claimant would have contemplated moving to London in late 2005/2006 the economy was booming. As he put it:

“Competition for banking lawyers was strong and law firms were competing with large investment banks to attract the best and most talented banking lawyers coming out of the large city law firms.”

Of course by 2008 the situation was very different, but in the light of my conclusion that the claimant would, on the balance of probability have moved to a London firm in the course of 2006, she would have made her move before the market conditions altered radically. That said in considering the financial consequences of such a move, some allowance must be made for the down-turn in the market, a point to which I shall return.

Mr Featherby also sought to argue that it is unlikely that the claimant would have wanted to move back to London given her young family and the attractions of a more rural life. As to that I accept the claimant’s evidence that that was her intention. As I have already indicated the claimant impressed me as a woman of driving ambition who had demonstrated an ability to manage both a demanding career and the demands of a young family. She had twice moved home when her children were very young. She would not have been daunted by the prospect of a further move.

I am therefore satisfied on the balance of probabilities, that had it not been for the accident, the claimant would have fulfilled her ambition to pursue her career in London, and would have moved to a medium sized central London or city law firm at the latest by the end of 2007.

The approach to the assessment of the claim to loss of earnings, both past and present

As to the claimant’s career prospects, three scenarios were advanced in the schedule of loss and damage, based on the evidence given by Mr Ziegler; first the base line, which assumed a series of promotions culminating in what she has achieved at Thomas Eggar, namely a fixed share equity partnership in a regional law firm; secondly the same progression as in scenario one until January 2007 when she would have joined a medium size city or central London law firm as a partner; and thirdly the same progression as in scenario two, save that January 2007 she would have joined a large/medium size city or central London law firm as a partner.

It is submitted on her behalf her that there was a 100% chance that she could have maintained the earning capacity of the first scenario until normal retirement age. Mr Norris further submitted that taking the mid-point of the brackets given by Mr Ziegler, there was an 85% chance that she would have achieved partnership in a medium size city or central law firm, and a 30% chance of joining a large/medium size city or central law firm as a partner, and that that provides the evidential basis for the adoption of the ‘additional’ claim formula as the most appropriate manner in which to calculate the claimant’s loss of earnings both past and future.

I am satisfied first that I can rely upon Mr Ziegler’s assessment of her prospects. He was particularly well qualified to make such an assessment, being involved on a day to day basis in placing solicitors in London firms at partnership level. Secondly I am satisfied that the Langford approach is appropriate in the circumstances, and provides a fair way of assessing the claimant’s loss. Her claim to loss of earnings, both past and future will therefore be assessed by assuming a 100% chance of attaining at least the base line scenario, plus 85% of the differential between that scenario and the income that she would have received had she become a partner at a medium sized City or Central London law firm (scenario 2), and 30% of the difference between her prospective earnings under scenario 2 and the income that she would have received had she become a partner in a large/middle sized City or Central London law firm (scenario 3).

It is then necessary to consider in more detail how her career would have progressed how her career would have progressed but for the accident. Would she have achieved a fixed share equity partnership at a firm of the calibre of Thomas Eggar earlier than May 2008, the date upon which she joined that firm? Her pleaded case is that the accident delayed her promotion at Blake Lapthorne, that she would have been promoted to senior solicitor by 1 November 2004 with an increase in salary from £48,226 pa to £55,000 pa, that she would have become a salaried partner at Blake Lapthorne or an equivalent firm from 1 May 2006 at a starting salary of £70,000 pa and that by May 2007 she would have achieved her ceiling as a salaried partner of a regional law firm of £110,000 pa. In other words she contends that her career was set back by about a year as a consequence of the accident.

Furthermore Mr Featherby conceded in his closing submissions that, but for the accident, the claimant would have been promoted to senior solicitor at Blake Lapthorne in May rather than November 2005. But he does not accept that she would have achieved salaried partnership at Blake Lapthorne.

Bearing in mind that the claimant was away from work for six months following the accident and did not return to full time work for a further six months, I consider that it is reasonable to proceed on the basis that the claimant’s career stalled for a period of about a year. But would she have achieved salaried partnership at Blake Lapthorne?

The difficulty in assessing the claimant’s likely progress at Blake Lapthorne is that she had only been with the firm as an associate solicitor for 8 months prior to the accident. The second difficulty is presented by her relationship with Miss Shimmin, who was senior to her in the banking department, and the degree to which it might have affected her progress within the firm. That was the subject upon which the claimant, Miss Shimmin and Mr Treherne, the head of the corporate department, gave extensive evidence. But I do not consider that it is necessary to embark upon an exhaustive analysis of that evidence for the following reason. It was abundantly clear that there was a clash of personality between them and that, to use the colloquialism, the department was not big enough for both. There was a revealing answer from Miss Shimmin in cross-examination when she said in the context of the claimant having been put forward for senior solicitor:

“Obviously there were still tensions as to how we could manage our respective ambitions but I fully expected to continue the joust …there were aspects that were difficult and involved us rubbing up against one another. ”

In these circumstances I am not persuaded that the claimant would have achieved a partnership at Blake Lapthorne. But had she not done so within what she regarded as a reasonable period consistent with her view of the rate at which her career ought to progress, I have no doubt that she would have moved on, and would have achieved a salaried partnership at a broadly equivalent firm by May 2006. That conclusion is amply borne out by the subsequent moves that she did in fact make.

What then are the financial consequences of scenario one? First I am satisfied that it is reasonable to assume that the claimant would have been promoted to senior solicitor at Blake Lapthorne at a salary of £55,000 pa from 1 November 2004 and that by 1 May 2006 she would have been a salaried partner at a firm of equivalent standing to Blake Lapthorne at a starting salary of £70,000 pa. That is borne out to some extent by the fact that she was promoted to fixed share equity partner at Lester Aldridge, a lesser firm, at a salary of £79,000 in May 2007. I am also satisfied that it is likely that she would have achieved a ceiling as a salaried partner of a regional law firm such as Thomas Eggar of £110,000 p.a. by May 2007. Given that I have concluded that she would probably have made a move to London by the end of 2007, that figure provides the base line for the lost chance calculation.

I turn then to scenarios two and three. Mr Zeigler gave a salary ranges of £100,000 - £230,000 and £130,000 - £260,000 respectively for scenarios 2 and 3. I note that Mr Zeigler gave evidence that he expected the claimant to have been at the higher end of the range, but some allowance must be made for contingencies not taken into account in the Ogden tables, such as the fluctuation in partnership share of profits due to fluctuations in the market for legal services. In that context I bear in mind the evidence from Mr Treherne that for the last financial year a full equity partner’s share at Blake Lapthorne was £65000 reflecting the effect of the recession. Balancing those considerations as best one can I consider that it is reasonable to work to a figure of £130,000 for scenario two, and £180,000 for scenario three.

There is then the question of the multiplier. First I see no reason to depart from the normal retirement age of 65. Secondly I consider that it is appropriate to calculate the multiplier by reference to the sixth edition Ogden future loss of earnings table at the 2½% discount rate to cover the period between the date of judgment and the claimant’s 65^th birthday on 30 October 2029.

Those findings provide the basis for the calculation of both past and future loss of earnings, subject so far as future loss of earnings is concerned to one remaining factor, namely the claimant’s residual earning capacity.

The claimant’s residual earning capacity

It is submitted on behalf of the claimant that her future earning capacity is of the order of £24,000 per annum gross based upon working a three day week. That equates to a salary of £40.000 on a full time basis. Mr Featherby submitted that her value in the labour market can be assessed by reference to the salary earned by her as an associate solicitor at Blake Lapthorne i.e. £45,000 pa. Thus the issue between them is in essence whether the claimant will be limited to a three day week if working in a significantly less demanding role. I bear in mind the evidence given by Professor Morris (see paragraphs 62 and 71 above) that she will be limited to a three day week. But the context in which he was expressing that opinion was of her continuing to work as a solicitor in private practice. In my judgment the argument that she will be limited to a three day week in any occupation is unduly pessimistic. I consider that if working as an employed lawyer, relieved of the stress of operating at partner level in private practice, the claimant could reasonably be expected to work a five day week. I therefore consider that she has a residual earning capacity of the order of £40,000 per annum gross

The remains finally the question of the multiplier to be applied to the claimant’s residual earning capacity. As to that, I am not persuaded that it is appropriate to apply a Table D Ogden discount. Her degree of disability has been fully reflected in the difference between her lost and residual earning capacity.

I shall require the parties to agree a schedule setting out the calculation of both past and future loss based on the above findings to be attached as an appendix to this judgment.

General Damages

As to the first, details of the injuries sustained in the accident are set out at paragraph 4 above. She continues to suffer mechanical neck pain from the wedge compression fracture of her cervical vertebrae which amounts to a mild disability particularly on heavier physical exertion. Secondly she continues to suffer intermittent aching in the left wrist, precipitated by certain actions such as lifting objects gripped in the left hand, gripping the handlebars of a bicycle or playing the piano, a pursuit that she enjoys. Mr Peter Warlock, the consultant trauma and orthopaedic surgeon instructed on behalf of the claimant, said in his report of December 2007 that whilst it is inevitable that degenerative changes in the joints of the left wrist will progress radiologically, increasing symptoms are not inevitable. He did however accept that it is possible that she will experience increasing pain/stiffness in the left wrist in the years to come, and in that event might have to consider surgery to the wrist. But he assessed the chance of her undergoing such surgery as low, of the order of 5-10% over the next 15 – 20 years. She also continues to suffer intermittent activity induced aching at the site of the fracture of the right ankle. Mr Warlock considers that the ankle symptoms may worsen with the passage of time, and that she has a 5 – 10% increased risk of developing osteoarthritis in the joint.

The claimant also has residual scarring to her legs, abdomen, nose and under her left arm, scarring of which, according to her fiancé Mr Tiffin, she is acutely conscious although the scars do not amount to a significant cosmetic disability.

As to the psychiatric pathology, in the immediate aftermath of the accident she suffered acute anxiety. She was terrified that she had sustained brain damage because she had 4 children depending upon her. She was also fearful of being ‘written off’ by work colleagues because of the severity of the accident. The injuries to her neck resulted in a persisting fear of paralysis; and at times she felt suicidal. By the time that she was assessed by Dr Davies in December 2007 she was continuing to present with the full constellation of anxiety symptoms that fulfil the diagnostic criteria of PTSD. They included intrusive and residual flashbacks related to the accident, and nightmares that woke her from her sleep with physical manifestations of fear. She ruminated constantly about her physical injuries and was hyper-vigilant towards danger. Her anxiety extended to road travel. The intensity and incidence of such symptoms receded in 2008, but remained sufficiently intrusive to require treatment from Miss Levitt in 2009, treatment which continues to the present day. Happily that treatment has been successful in that the symptoms of PTSD are now at a sub-clinical level.

When seen by Dr Davies in December 2007 she also presented with a range of symptoms indicative of a chronic and severe major depressive disorder, in particular a loss of self-esteem, a loss of motivation, a loss of energy, a reduction of lateral thought and ability to think dynamically, guilt, sense of failure, loss of appetite and loss of libido. She was also suffering from disturbed sleep and early morning waking depriving her of deep refreshing sleep patterns. As has already been observed, she has made a recovery from her depressive illness. Dr Davies considers that some depressive and PTSD symptoms may recur in the future after such a severe and life-changing accident. The defendant’s psychiatrist, Dr Gill, accepts that such symptoms could recur, particularly in the event of a further shock or trauma, but would not expect any such recurrence to be other than brief and non-disabling. The risk of recurrence of depressive illness has to be taken into account in assessing general damages.

The symptoms attributable to the traumatic brain injury are set out at paragraph 33. As I have already observed, her condition must now be regarded as permanent. It is clear that the claimant has now largely come to terms with the limitations imposed by the consequences of the injury to the brain; but their affect upon her life has been very considerable. She was a highly ambitious woman who would have succeeded in a highly demanding role as a solicitor practicing at partner level in transactional work related to banking. She has lost the satisfaction and sense of self-esteem that would have attended such a career. Her life will now be very different. She has to set herself much more modest targets compatible with the limitations imposed by the injury to her brain.

Counsel for both claimant and defendant invited my attention to the JSB Guidelines for the assessment of general damages, and in particular to the sections for brain damage and psychiatric damage. As to the brain damage, the case falls within (iii) of category (C) ‘Moderate Brain Damage’ which embraces “Cases in which concentration and memory are affected, the ability to work is reduced, where there is a small risk of epilepsy and any dependence on others is very limited”. The suggested bracket for that sub-category in the ninth edition of the Guidelines is £27,500 - £58,000. Taking account of the orthopaedic injuries, the PTSD and severe depression caused by the accident, I have come to the conclusion that the appropriate figure for general damages for pain suffering and loss of immunity is £60,000.

Her base line, involving a series of promotions culminating in a salaried partnership at a firm such as Thomas Eggar LLP

As (1) above up to 31.12.07 when she would have joined as a partner at a “Medium sized City or Central London Law Firm”

As (2) above up to 31.12.07 when she would have joined as a partner at a “Large / Medium sized City or Central London Law Firm”

Notional earning capacity to the date of Judgment

Future notional earning capacity after the date of Judgment

Credit for earnings received to date of Judgment

Residual earning capacity = £40,000 gross = £29,524 net @ 2010 rates x 13.13 = £387,650.

SUMMARY