Mustard v Flower & Ors

This is my reserved judgment on cross-applications that came before me on 29 August 2019. Mr Marcus Grant represented Samantha Mustard, the claimant. Mr William Audland QC represented Direct Line Insurance, the third defendant. (The other defendants were not present or represented.) I am very grateful to counsel for their helpful and economical submissions.

The claim arises out of a road traffic accident which took place on 21 January 2014 in Milton Keynes. The claimant’s stationary Honda Jazz vehicle was struck from behind by a Fiat Punto vehicle driven by the first defendant. Liability is not in issue. The claimant was then 34 years of age and employed as a quantity surveyor. She had a complex medical history. She claims that in the accident she sustained a sub-arachnoid brain haemorrhage and a diffuse axonal brain injury such as to have left her with cognitive and other deficits. But there are marked differences between the experts as to her presentation and the interpretation of her medical records, imaging and history. In part, these differences depend on, or may be influenced by, the court’s finding as to the speed of impact. Essentially, the third defendant (hereinafter “the defendant”) says that the impact was relatively minor, whereas, on the claimant’s case, it was at least a “medium velocity impact”. In turn, the defendant’s medical experts say that the claimant suffered no, or only minor, brain injury, whereas the claimant’s experts say she suffered a serious brain injury – albeit that the manifestations of that injury are “subtle”.

The main directions were given by Deputy Master Bagot QC on 26 July 2018. He restricted the number of factual witnesses to 10 in total and gave permission for expert medical evidence in the fields of:

On various dates in the second half of 2017 and the first half of 2018 the claimant was examined by the defendant’s medical experts. She had been advised by her solicitor, Mr Christopher Dickinson, to record the examinations on a digital device. She did so. In the cases of Mr Matthews, the defendant’s orthopaedic surgeon, and Mr Kellerman, the defendant’s neurosurgeon, the claimant recorded the consultations covertly. In the case of Dr Torrens, the defendant’s neuropsychologist, the claimant asked if she could make a recording. Dr Torrens agreed that she could record the clinical examination but, for reasons I will come to, not the neuropsychological testing. The claimant accepted this and, on her account (and audible from the recording) tried to switch off her device. But (again, on her account) she mistakenly failed to do this and the machine went on recording. She inadvertently recorded the whole of the consultation with Dr Torrens. There are therefore recordings by the claimant of all her consultations with the defendant’s medical experts. Additionally, three of those experts, Dr Grace, neuropsychiatrist, Dr Surenthiran, audio-vestibular physician, and Dr Torrens made their own recordings.

Because the defendant was aware that Mr Dickinson advised his clients to record their examinations with the other side’s medical experts and because they wanted to establish a level playing field in this regard, the claimant was invited by the defendant to record her examinations with her own medical experts. She gave no undertaking or indication that she would do so and, in the event, she did not. There are, as I understand it, no recordings made by the claimant’s experts either.

Strong objection has been taken to the covert recordings and the defendant invites me to exclude the evidence pursuant to CPR rule 32.1(2). That application is resisted and, by way of cross-application, the claimant has filed a supplementary statement from Professor Morris, her neuropsychological expert. The thrust of that statement is that the transcript of the consultation with Dr Torrens reveals that she made serious errors in her administration of the neuropsychological testing such as to render it of doubtful value. Thus, the court is presented with the problem (more familiar in the criminal and family jurisdictions than it is in personal injury litigation) of evidence which may have been obtained improperly or unfairly but which is nevertheless relevant and probative.

The other main application concerns Part 35 questions to the defendant’s experts. Such questions were served on 3 June 2019. With their appendices, they fill two ring binders. In order to illustrate their length and complexity I have annexed the questions to Dr Torrens to this judgment. A combination of the questions and the covert recordings prompted 6 of the defendant’s experts to write to the Court seeking directions. I summarise their objections to the questions below, but, in essence, their complaint is that the questions would take a disproportionate amount of time to answer and that they amount to cross-examination. Some of the experts have felt sufficiently strongly about the questions and, more particularly, the covert recordings to have involved their professional bodies. Notwithstanding the claimant’s advisers’ attempts to shorten and simplify the questions and their suggestions as to how the experts may wish to approach them, the defendant has applied for an order setting aside the questions or directing that the experts are not obliged to answer them. This too is resisted.

In his witness statement filed in opposition to the application, Mr Dickinson has stated that the claimant “elected to record her appointments both to provide herself with a reference as an aide memoire of what was said and to provide herself with evidence to demonstrate any misunderstanding as to what was actually said, if required”. To this, Mr Dickinson added that his experience of this cohort of his clients (those with subtle brain injury) demonstrated that many have problems of memory and fatigue. They could answer questions clumsily, their answers could be misinterpreted and this could then be the foundation for allegations of dishonesty. He has pointed out – correctly in my view – that Dr Torrens has characterised the claimant in this litigation in terms that stop only just short of an allegation of outright dishonesty.

Whatever her intentions and whatever guidance may have been offered to her by Mr Dickinson, the claimant did not in every case inform the relevant expert that she intended to record the consultation. In the cases of Dr Cockerell, Dr Grace and Dr Surenthiran, she announced her intention and they all agreed to the recording. In the case of Dr Torrens, she told Dr Torrens what she was doing or proposed to do and Dr Torrens told her she could record the clinical interview but not the neuropsychological assessment. Both were nevertheless recorded – the claimant says by accident. In the cases of Mr Matthews and Mr Kellerman, the recording was covert. However, in his client’s defence, Mr Dickinson has pointed out that all the defendant’s experts had been forewarned by their own instructing solicitors that the claimant was likely to be recording the consultations and the claimant assumed that they knew.

By way of qualification to the foregoing, Dr Surenthiran, although taking no issue at the time, has nevertheless also complained that the recording was covert. Both he and Mr Matthews have drawn attention to an additional feature of the recordings, which is that they began in the waiting room and picked up extraneous material, including the name of one of Dr Surenthiran’s consultant colleagues.

Both Mr Matthews and Dr Torrens have complained in very strong terms about the covert nature of the recordings. Mr Matthews has said that he feels that the claimant’s actions were wanting in honesty, transparency and common courtesy, that his permission should have been sought and that he feels sullied by what took place. Dr Torrens has said that she feels professionally violated, distressed, angry and disillusioned. Further, the recording of the neuropsychological testing had (a) raised issues regarding the proprietary rights in the tests, which were not for

Before coming to the substance of these complaints, I should set out what became of the recordings once made. I was told that the claimant herself did not listen to them but released them to Mr Dickinson. Mr Dickinson then followed what I understand to have been his usual practice. He did not himself listen to them or have them transcribed until he and his client saw the reports when they were disclosed by the defendant. I was told that it was at that point that he and the claimant formed the view that the reports had not in every case set out accurately the history given by the claimant and that there were other defects also. The recordings were then (Footnote: ¹) transcribed and that of the examination by Dr Torrens was sent to Professor Morris for comment. That exercise generated a supplementary report from Professor Morris dated 14 May 2019 (and also formed the basis of a component of the Part 35 questions put to Dr

Shortly before the hearing, there was a last round of evidence concerning the recording issue. This was, in part at least, provoked by a Subject Access Request dated 10 July 2019 to Dr Torrens from the claimant in which she sought her neuropsychological test data. Dr Torrens responded to this request on 9 August 2019, declining it on grounds that to do so would breach the guidance of her professional body, the British Psychological Society, and Pearson Clinical, the providers of the test materials, which were protected by copyright. On 22 August 2019, Dr Torrens made a witness statement exhibiting this correspondence and the guidance from the BPS and Pearson. This guidance took the form of:

The defendant also deployed a witness statement dated 20 August 2019 from Professor Gus Baker, a member of the executive committee of the BPS’s division of neuropsychology and previously the chairman of its professional standards committee. Professor Baker was the coauthor of a document (which he described as a Position Paper) entitled “Guidelines for the recording of Neuropsychological Assessments”. He said that these guidelines represented an overall agreed position within the department of neuropsychology, although “there will be some members who do not necessarily agree with it”. The Guidelines were soon to be published, (though it is not clear that they have yet reached their final form).

With slight differences of emphasis, Professor Baker and Dr Torrens made the same general points about recording of neuropsychological examinations. These were (1) that in a medicolegal context recording was capable of changing and distorting the nature and dynamics of the examination and therefore the results and (2) recording could render patients un-assessable in the future. The proposed BPS Guidelines on recording advised that neuropsychologists should not allow patients to make their own recordings and should, indeed, discontinue the assessment if covert recording came to light.

The claimant responded to these statements by way of a further supplementary report from Professor Morris dated 27 August 2019. The report (expressed with the same care and moderation as his report of 14 May 2019) is detailed and, for present purposes, it is enough if I summarise his response to points (1) and (2) in the preceding paragraph. As to point (1), Professor Morris acknowledged that recording of examinations introduced a dynamic of its own. However, there was little empirical evidence as to the effect of that added dynamic and there were potential benefits as well as potential disadvantages. He pointed out that recording and observation of clinical examinations were commonplace. Whilst he deprecated covert recording, he doubted that it impacted greatly on the assessment. As to point (2), he agreed that there was a risk of the patient being rendered un-assessable in the future, but this was a risk that could be mitigated. More generally, he pointed out that the Guidelines, whilst helpful, did not address the “elephant in the room”, which was that if they were strictly adhered to then incompetence or malpractice on the part of a neuropsychologist administering the tests would go undetected. This could lead to an injustice and could also have clinical repercussions for the patient. His report, at paragraph 1.24, contained the following suggestion for the future:

“There are different views about recording amongst clinical neuropsychologists. One alternative view is that there should be routine recording by the examining clinical neuropsychologists, this not being different in kind from clinical practice. The records would be kept by the clinical neuropsychologists and exchanged if anything untoward was detected and needed to be potentially addressed within a closed court.”

To add to the material from the above-named experts, my attention was drawn to an article in the Medico-Legal Journal by the neurologists Michael Gross, Len Doyal and Michael Swash entitled “The covert recording of medico-legal consultations”; see 2018, Vol 86(4) 202-207. This article stated that the General Medical Council and medical defence organisations in the UK “have come to accept that patients can legally make covert recordings of their consultations with a doctor”. The article criticised the stance of the GMC on this matter. For reasons closely aligned to the views expressed in this case by Professor Baker and Dr Torrens, the authors suggested that the issue required wider debate and that covert recordings “should not be regarded as acceptable in evidence put before a court”. An editor’s note to the article offered a further suggestion as to future conduct:

“As experts are instructed as a matter of contract it should be clearly stated in the contract that no covert recordings may be made at any time. The contract might state, for example, that recordings of any consultation or examination can only be made with the express consent of all the parties concerned and when acting jointly. Similarly, there may be stated restrictions on the use and dissemination of such recordings and transcripts.”

Mr Audland QC’s submission had broadly two limbs which were (1) that the recordings were unlawful under the Data Protection Act 2018 and the General Data Protection Regulation 2016/679 and (2) that they should be excluded (a) because of the unlawful (or, at the very least, improper) manner in which they had been obtained, (b) because they had impaired or undermined the validity of Dr Torrens’ testing, and, (c) because they gave rise to an uneven playing field or an inequality of arms as between claimant and defendant in that only the defendant’s experts’ examinations had been recorded in this way.

It is important to note that Mr Audland QC did not contend that the manner of obtaining the recordings should, of itself, lead to their exclusion. He accepted the proposition that evidence that had been unlawfully or improperly obtained might still be admissible. What was required was that the court should consider the means employed to obtain the evidence together with its relevance and probative value and the effect that admitting or not admitting it would have on the fairness of the litigation process and the trial. The task of the court was to balance these factors together and, having regard to the Overriding Objective, arrive at a judgment whether to admit or exclude. To put it slightly differently, the issue was whether the public policy interest in excluding evidence improperly obtained was trumped by the important (but narrower) objective of achieving justice in the particular case. This approach, from which Mr Grant did not dissent, seems to me to be fully in line with the authorities to which I was referred and which I need not set out. I do, however, note that in the majority of such cases the balance has been struck in favour of admitting the evidence.

I have decided that I should admit the evidence in this case.

I reject the proposition that the recordings were a breach of the Data Protection Act or the GPDR and I do not propose to give the submission detailed attention. Article 2(c) of the GPDR provides that the Regulation does not apply to the processing of personal data “by a natural person in the course of a purely personal … activity”. Recording a consultation with or examination by a doctor would seem to me to fall into this category. I do not think that the claimant supplying the recordings to her advisers took it out of the category. Further, the relevant data relate to the patient (the claimant) not the doctor. (I mention that this is apparently the view of the General Medical Council – see the article in the Medico-Legal Journal referred to above – and also the Information Commissioner’s Office, whom Mr Dickinson consulted on this matter). Both the Act and the GPDR contain exceptions or “carve-outs” for data which is gathered or processed or disclosed for the purposes of exercising or defending legal rights, (I use that expression loosely and compendiously). The provisions are contained in Article 6 as read with section 8 of the Act and in section 5 of Schedule 2 and, if recourse to them were needed, would apply in this case. I note that all objections based on the legality of the recording were abandoned in the case of Chairman & Governors of Amwell View School v Dogherty UKEAT/0243/06/DA, which was similar on its facts to the present one. Although the data protection regime was then contained within the 1998 Act, I have not been alerted to any material difference so far as the point under consideration is concerned. Finally, I note that if Mr Audland QC’s submission were correct it would have the very surprising and undesirable consequence that covert video recordings of claimants by insurers would be equally unlawful.

Mr Audland QC placed some reliance on the decision of the CJEU in the case of Buivids C345/17. That case is of no assistance. Mr Buivids, a Latvian citizen, had published on YouTube a video he had taken of Latvian police officers performing their duties in a police station which he had attended in the context of administrative proceedings brought against him. He considered that the officers had behaved unlawfully and wished to expose that conduct to the general public. It is obvious that the data protection breach (which it was found to be) was the uploading to and publication by FaceBook of the video recording; see paragraph 39 of the judgment. That is entirely different from the facts of this case and, in particular, the provision of the doctors’ data (if such it be) to the claimant’s solicitor and her own medical experts.

The position is therefore that the covert recordings were not unlawful. In the case of the recording of the examinations by Mr Matthews and Mr Kellerman, the recording was reprehensible and perhaps deserving of some of the epithets which Mr Matthews has himself applied. In the case of the recording of the examination by Dr Torrens, the evidence from the claimant is that the recording was unintentional. She had meant to turn off her digital device and through clumsiness or unfamiliarity had failed to do so. Turning a digital device on and off is an easy enough thing to do. However, it would not be fair or proper for me to reject this explanation on a paper application and I will therefore proceed on the basis that the explanation is correct. If it were not correct, then the covert recording of Dr Torrens’ examination would be more reprehensible than that of the examination by Mr Matthews because it would have involved frank misrepresentation and subterfuge. There is also the added dimension that the materials she was recording were subject to copyright. Wherever the truth of this may lie (and I repeat that I am proceeding on the basis that the claimant’s explanation is correct), I do not think that the covert recordings were so reprehensible as to outweigh the considerations that I set out in the following paragraphs. The claimant acted on the advice of her solicitor and her motives were, in the context of adversarial litigation, understandable. Whilst her actions lacked courtesy and transparency, covert recording has become a fact of professional life. As foreshadowed by Professor Morris and as Mr Grant suggested in the course of his submissions, the sooner that there can be some kind of protocol agreed between the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers which governs the recording of medicolegal examinations the better. It is the interests of all sides that examinations are recorded because from time to time significant disputes arise as to what occurred. In that situation, it is important to have a complete and objective record of the examination, which is subject to appropriate safeguards and limitations on its use. It is desirable that the parameters of such recording should be on an “industry-wide” agreed model which caters for the many issues capable of arising and, I might add, which pays careful attention to the containment of the costs that might potentially be generated.

I turn then to the other considerations: first, the relevance and probative value of the recordings. For the reasons given by Professor Morris, the recording of Dr Torrens’ examination is and is accepted to be relevant and probative. It seems to me to be highly relevant. Further, there is a related factor which was regarded as important in the case of Jones v University of Warwick

I have not overlooked Mr Audland QC’s submission that the effect of the claimant’s covert recording was to impair or degrade the results of the neuro-psychological testing by Dr Torrens. But this is a marginal factor in the decision on admissibility. Plainly, the thrust of Professor

Although argument at the hearing concentrated on the recording of Dr Torrens, the covert recordings of Mr Matthews and Mr Kellerman are also accepted to be relevant and probative – specifically in relation to the claimant’s account to them of her pre-accident history, the progression of her symptoms and (in the case of Mr Matthews) in relation to whether the Waddell sign from the axial loading test was correctly reported as positive.

I emphasise that I am making no finding that any of the criticisms of the defendant’s experts based upon the recordings are correct or justified. The extent of Mr Audland QC’s concession

The other factor to consider is the effect of admitting the evidence on the overall fairness of the litigation process: what Mr Audland QC called the “level playing field” point. The claimant’s stated reason for wishing to record her examinations with the defendant’s experts was to protect her interests having regard to the vulnerabilities and frailties she maintains have been the result of the accident. If that was her motivation (which I am not in a position to question on a paper application and which is, anyway, plausible) then it is understandable that it applied or applied with particular force to the defendants’ experts and not those instructed on her side. She gave no undertaking that she would record her examinations with her own experts and none was sought. As Mr Grant observed during the course of his submissions, the defendant has not pointed to any aspect of the examinations by the claimants’ experts that has raised a query that a recording would assist to resolve. To that extent, Mr Audland QC’s level playing field point is merely theoretical.

Weighing these matters in the light of the Overriding Objective, I have come to the clear conclusion that the balance favours admitting the evidence. (I deal separately below with the discrete question of the test materials.)

It is conceded that those parts of the recordings which have picked up conversations in the waiting rooms of the experts concerned should be erased and excluded. The persons concerned would appear to have been the receptionists employed there and the conversations merely social interactions. Although I regard this as an unfortunate feature of the covert recordings, there has been no wider publication of these parts and the claimant and Mr Dickinson never intended that there should be.

The relevant part of the rule is in these terms:

“35.6

- (1) A party may put written questions about an expert's report (which must be proportionate) to –

(a)

an expert instructed by another party; or

(b)

a single joint expert appointed under rule 35.7.

(2)

Written questions under paragraph (1) –

(a)

may be put once only;

(b)

must be put within 28 days of service of the expert’s report; and

(c)

must be for the purpose only of clarification of the report, unless in any case –

(i)

the court gives permission; or

(ii)

the other party agrees.”

The rule in its original form did not include the requirement that questions must be “proportionate”. The mandatory requirement for proportionality was intended to address the practice that had arisen in some quarters of serving lengthy, complex sets of questions that were, in reality, a form of cross-examination.

Mr Audland QC’s attack on the questions was that they were wholly disproportionate and that they were not for the purposes of clarification only. They ran to many, many pages and included a mass of enclosures (listed at the foot of each set of questions) comprising variously a transcript of the recording of the examination, academic or research literature, witness statements and so on. In some cases the questions and exhibits served consisted of a whole file of material. The sheer volume was unprecedented. In addition to the foregoing, the letters to the court from the experts themselves made the following points:

The initial response of the claimant’s advisers was to re-visit and modify the questions. In some cases the question was withdrawn; in others the question was followed by some words of explanation as to its basis or what had prompted it; in others the expert was given the option, if preferred, of leaving the question to be dealt with in cross-examination at trial. By way of further modification or concession, the claimant’s advisers’ position by the time of the hearing was that the defendant’s experts should answer those questions which they felt appropriate to answer and in other cases should decline to answer, but giving reasons so that the claimant’s advisers could then consider whether or not to press the question by way of an application for an order. There was some support for such an approach in the notes to CPR 35.6 in the White Book, which said that if an expert received a set of questions which (s)he considered went beyond the spirit of the rule, the right approach was to “answer the clearly relevant questions and only to decline to answer the remainder if (i) to do so would be clearly prejudicial to the instructing party’s position, or, (ii) the time and cost of replying to the questions was disproportionate”. Mr Audland QC’s response to these modifications was that they did not answer the basic objections to the questions and quite impermissibly placed a burden on the experts to decide what were and were not proper questions.

In his submissions, Mr Grant pointed out that the expert evidence was detailed and complex (running to some 900 pages). It was therefore scarcely surprising that the claimant’s questions were also detailed and complex. A significant component of the questions dealt with an oversight on the part of the defendant’s experts, which was that they had not clarified their opinions in the light of the expert evidence which dealt with the speed of the collision – an important point in the case. They had not, he submitted, dealt or dealt sufficiently with the claimant’s pre-existing vulnerability or with a crucial letter from the hospital which treated her in the aftermath of the collision and which supported her case that she had suffered a subarachnoid haemorrhage as a direct consequence. (He separately observed, with justification, that this letter, albeit helpful, had been improperly obtained by the defendant and then simply listed as an anonymous document at item 25 of their list for the claimant to discover – conduct which did not reflect well upon the defendant.) Mr Grant drew attention to the authority of Mutch v Allen [2001] EWCA Civ 76. In that case the Court of Appeal allowed a question to the claimant’s expert which went beyond simple clarification. (Mr Audland QC and Mr Grant referred to this type of question as a “question by way of extension”.) This authority does not, to my mind, take matters much further in that it is clear from the rule itself that such questions may, in a proper case, be put by agreement or with the court’s permission. Lastly, Mr Grant took me skilfully through a representative section of the questions. He submitted that the questions were relevant, that they were carefully and moderately drafted and that they would elicit evidence in a way that was collaborative, expeditious and cost-effective.

Notwithstanding the cost and effort that have gone into the questions and notwithstanding that the motives of Mr Dickinson and Mr Grant have simply been to advance their client’s case to

Although Mr Grant, understandably, did not invite it, I have considered whether I should embark on some sort of process of editing and refining the questions so as to bring them within the scope and spirit of the rule. I have decided not to do so. As already noted, many of the questions will likely be answered by a different route and in a different format in due course anyway. But even if that were not the case, the questions are wholly disproportionate and it is not appropriate to attempt a rescue operation, which would certainly be contentious and involve further cost and delay. In the context of this claim and of litigation more generally, the policy interest in discouraging questions such as these is better served by giving them a swift and decisive quietus.

When it comes to drawing up the order reflecting this judgment, I invite the parties to consider a further matter. This is that I would wish to avoid these questions finding further life and expression in any agenda for the joint meetings of the experts. The directions do not, in fact, provide for agendas. (Even in those cases where they do, they are never mandatory.) My provisional view is that there should be no agendas unless the experts, with reason, ask for them and, in that case, they should be drafted in the most direct and concise language.

I will not lengthen this judgment with detailed consideration of the other matters that were in issue, but which were less contentious. My rulings on these matters are as set out in the following paragraphs.

I invite counsel to agree and submit an order reflecting the above.

I add some very brief further observations about the covert recordings. At the stage when the application was to be listed, the claimant’s solicitor suggested that it be referred to a High Court Judge for determination and for the giving of general guidance on the issue. The defendant

Some time after the hearing, I was supplied with further material on the status of the BPS Guidelines on recording. That material merely confirmed the view that I had already formed of their status and it has not been necessary to refer to it.

In the conclusion of your first report you stated "It is also for the Court to decide the extent to which Ms Mustard also reported the vast majority of the symptoms which now attributes to the accident prior to it.".[67] . You refer to the GP letter dated 22.3.13 to Dr Smith at the Saxon Clinic [12], but there does not appear to have been any attempt by you in your conclusion to analyse the symptoms that the Claimant was reporting in 2012 and 2013 and to consider whether these might be related to the bacterial and viral infections that were diagnosed by physicians and the time and treated satisfactorily before the accident.

Irrespective of your answer to Q 1, from your review of all the materials in the case (including importantly the statements from her managers), are you satisfied that the various health concerns that troubled the Claimant between September 2012 and July 2013 did not keep her away from work for long, and that she was back working effectively long before the accident? This is a straightforward factual clarification question capable of a short answer and important to the Court given that the claim is principally about her lost earning capacity following the accident.

In the conclusion of your first report you stated: “I would highlight, too, the emerging picture with injuries and complaints not being raised until some time after the index accident and complaints seeming to get progressively worse instead of better as we might anticipate” (our emphasis). [67]. You are invited to review the following history that the Claimant provided to you, most of which you acknowledge in your report. She describes her headaches as having a worse intensity initially and to be “constant” (29.21) with “exacerbations” (29:16) with the background headache being “constant” (30:12), having periods where she couldn’t feel her hands or legs to have resolved on their own after nine months (24.27); her vestibular symptoms to have stayed the same (32:00), that “my neck actually is better than what it was” (38:02); of chiropractic treatment “I'm now trying to push it out to every month. I'm actually due for another round of injections with Chris Jenner”; that her back was “constant” (41:10); that her coccyx pain “comes and goes” (41:52); in relation to anxiety: “ I've got a little bit of driving anxiety, which is understandable, but as I say, that's been treated by Gillian Levett, and that's gotten a lot better”

In your 1^st report (p. 64) you appeared to accept the First Defendant’s account of his speed at the time of the accident at no more than 3 – 5 mph, and with him having "rolled into" the Claimant’s car (p. 67) causing "no damage whatsoever to the Defendant's car" (p. 64) and no damage to the underlying structure of the Claimant’s car [2^nd report p.6]. We note that you didn’t question the Claimant about the speed of the collision yourself. Please clarify whether your conclusions in this case have been coloured by your apparent acceptance of the First

If the Court were to be persuaded by the occupant displacement experts and the neurologists in the case that the mechanism of this accident fell above the threshold capable of causing:

In your report you stated variously: " I note the specific advice, sought from Neurosurgeons in Oxford, that Ms Mustard should not be treated as though she has sustained a subarachnoid haemorrhage despite the lumbar puncture findings”.. and ..“by July however, the subarachnoid haemorrhage is being talked about as though it were fact, despite the initial advice of Oxford Neurosurgeons.” [62], “It is for medically qualified professionals to advise the court with regard to whether or not they consider Ms Mustard to have sustained a subarachnoid haemorrhage in the index accident. However, my own understanding of the severity of the accident leads me to suspect that the impact was not sufficient to have given rise to such an injury” [67] In your report you misquoted the Milton Keynes entry dated 28.1.14 as: " Xanthochromia possibly result of micro trauma” when the entry stated: "xanthochromia + result likely to be the result of micro trauma at the time of the accident”. You also overlooked from your review of the documents a letter dated 5.2.14 from Miss Bojanic consultant neurosurgeon at the John Radcliffe that stated:

“All results have previously been discussed with both the neurosurgical and neurology team at the John Radcliffe Hospital and it was felt with the history of trauma that the positive lumbar puncture was secondary to trauma alone”. You are also now provided with the letter from the Milton Keynes hospital dated 15.3.18 responding to questions posed by the Defendants which confirmed that the level of bilirubin found was: “strongly indicative of a bleed occurring several days prior to the sample collection, as the oxyhaemoglobin is reduced having been converted to bilirubin by normal biological pathway”.

In order that the court may understand the range of your opinion in the case, please clarify whether you would provide a wider range of opinion if the neurologists and neurosurgeons in the case concluded that the Claimant did sustain a traumatic SAH in the accident.

When you asked the Claimant about the accident you stated: “so as I understand it then there was a rear end shunt [5], Right okay so start, start and tell me then what did happen so that I'm clear” [6]. Please clarify: -

Please review your notes and/or p 10 of the transcript and clarify whether you understood the frequent references to the Claimant “knowing” that she (1) went to her GP; (2) ended up in hospital (3) rang the Direct Line (the First Defendant’s insurance company) were events that she knew happened but had no recollection of, or were her recollections, and clarify the basis of your understanding.

On page 7 of your second report dated 11.9.17 you stated: “This is not the behaviour of someone in post-traumatic amnesia, who would have been vague, confused and disorientated”. Please clarify to the Court that you understand that PTA cannot exist in the absence of confusion and disorientation.

In relation to the 2006 RTA, you note that: “Ms Mustard presents over the following 9 months complaining of whiplash, fatigue… migraine and dizziness.”[60] Please clarify whether these could be symptoms consistent with a head injury being sustained, and if so whether this accident and the “previous RTAs, far more serious in terms of impacts and speed” (3^rd report p. 8), could have rendered her more vulnerable to subsequent cerebral injury.

A page 65 of your report you stated: "it is obviously entirely inappropriate for Claimants to record the cognitive testing part of a neuropsychological assessment because confidential test material then becomes available in the public domain invalidating what are a limited number of tests which we have at our disposal as Neuropsychologists. Had I not asked Ms Mustard about this, it would not have come to light and she would in-deed have recorded the entire session.” Please clarify:-

Your clinical interview lasted one hour 20 minutes. There was no break save for a two-minute toilet break. The testing then commenced and the Claimant asserts that the testing lasted for no more than one hour. At the start of your interview, when referring to the neuropsychological testing, you said: "I'll try to keep that as brief as I can" [5] and “It's less in depth than ideally I would have done”[57]. Please clarify:

Please clarify whether you believe you established a rapport with the Claimant. We are mindful of the following comments in your report: “Ms Mustard went on to say that, as I could tell, she was angry. She said that she disliked having to come and see me to talk about it when “all the medical evidence is there” [50]. She was coherent and clearly agitated and really quite brittle and angry in her affect. [50] Ms Mustard went on to describe her ensuing and continuing symptoms in dramatic terms. She said that she thought the assessment was all a bit of a waste of time [55] She came across as very angry and she was somewhat grandiose [65]”.

Please clarify whether any lack of rapport can have an effect on neuropsychological test performance and results?

You expressed concern in your report that the Claimant had been tested 3–4 months earlier. Please clarify why you say a 3-4 months gap is insufficient for repeated tests if practice effects are taken into account?

When you tested the Claimant's premorbid ability you scored her as getting 30/50 words correct. This part of the assessment was before you asked her to stop recording. Our understanding is that she correctly scored 36 words. Please check your notes and clarify which words she got right and which words she got wrong and exhibit your raw test materials if they have not already been supplied.

Please clarify whether you departed significantly from any of the standard instructions. If soplease set out which instructions were departed from and why. Please exhibit your testsheets/notes in respect of any significant departures to these replies.

Please clarify whether departing from the standard instructions can affect the Claimant's responding and/or performance

At p. 55 of your report you stated that the Claimant complained that her “head is starting to …” and observed that she needed to “steady herself on the table edge”, and at p. 56 that the

On the 21 item test the Claimant appears to have scored 10, one below the cut-off.

On the arithmetic test, it appears that the practice trial has not been given and the questions get harder and then easier towards the end.

On the Matrix Reasoning test, it appears that the first three test items were not given. Please clarify why you elected not to administer these items, whether you made a note of this, and whether this would have invalidated this test.

For the first subtask of Cancellation (WAIS-IV) it appears that you missed out the demonstration item, gave incomplete instructions for the sample item that was capable of confusing the Claimant, provided incomplete instructions, then following the practice item, failed to go through seven sentences of instruction and incorrectly informed the Claimant how long she would be doing the test for. On the second subtask it appears you failed to give the demonstration item and the sample item and then used a one sentence instruction where seven sentences should have been provided. Please clarify:-

You stated at p. 57: “she is right handed but held her pencil in a very odd manner towards its base as though she were not really engaging with it.” Please clarify if this is the same test where you record that the Claimant copied the figure “perfectly” (p. 57)?

At p. 45 of your report you stated: “Rather late in the day, she told me that she had been assessed very recently by another neuropsychologist. She was seemingly unable to tell me what tests she had undergone”. You asked the Claimant at 01.29.34 on the transcript: “Can you remember what, what sort of things you did?” to which she replied “It had to do with words and blocks and bits and bobs like that”… “I think there was probably some memory stuff as well”. Given the implied criticism of the Claimant, please clarify what was unsatisfactory about her answers and why you didn’t probe for more detail if you considered it important?

On the mood score you stated that the Claimant obtained "the rather unlikely score of 0/63 on an anxiety questionnaire" please clarify why this is unlikely when the Claimant reports no current anxiety. Please clarify whether you are familiar with the enclosed BAI paper that confirms that20% of a normative population obtain a score of zero.

At p. 64 of your report you referred to the Milton Keynes A&E neuro-ophthalmic record and suggested that it was probably inaccurate for the Claimant to suggest that she sustained an ocular haemorrhage. Please clarify that the same record also states “fundoscopy showed what looks like bleeding in the lower part of disc looks, deviated to medial side”?

In your first report you note that the GP record dated 19.05.09 states “Nine months PAT (Paroxysmal Atrial Tachycardia). Please clarify that this is an error and the record states:

At p. 66 of your report you stated: “She made no spontaneous reference to cognitive symptomsbut, when I asked directly about them, she stressed their severity.” On reviewing the transcript you asked the question at 29 minutes: “Yeah, let's do a list, so let's, so persisting things, difficulties”, at which point she started by telling you about her physical symptoms; first , her various headaches, then her dizziness, then her neck and back, how those conditions affected her activities and then she moved onto the cognitive symptoms at 46:59 without prompting by you (p. 28 of the transcript). Please clarify whether you accept that, now you have the benefit of the transcript to prompt you?

By reference to your notes and/or the transcript, please clarify whether or not you accept that she volunteered the following cognitive difficulties:

Please clarify that you did not explore other possible cognitive deficits (such as those recorded by other experts in the case) with a mixture of open and closed questions?

Please clarify that the cognitive symptoms volunteered by the Claimant, as identified at 29 above are consistent with the cluster of symptoms reported by patients with DAI?

At p. 53 of your report you recorded that the Claimant: “did not drink and could not take it because she was intolerant and it went straight to her head”. She also told you, though you did not record it explicitly: “I used to have a healthy appetite for it, but now one sip and I'm gone” (see p. 42 of the transcript). Please clarify whether such marked alcohol intolerance is consistent with DAI, and confirm whether it is a feature associated also with purely psychological pathology, and if so which purely psychological pathologies?

At p. 52 of your report you stated: “she was able to spell the names, with no hesitation or difficulty, of the various people involved”. Please clarify if you detected that she spelt ‘Matharu’ incorrectly spelling it ‘Mathuru’. Also on the transcript of her appointment with Dr Surenthiran she spelt ‘Cadoux-Hudson’ Cadaux-Hudson’ (p. 54, 50:31)?

You stated at p. 41 of your sixth report dated 18.12.18 when referring to the Claimant’s email to Dr McCulloch describing her functional cognitive deficits that these: “would be “real” only in the most severely brain injured or dementing patients. They are simply not credible”. Please clarify which of her reported symptoms would only be present in a patient that had been severely brain injured?

At p. 65 of your report you stated: “She implied that her husband was offshore. It then emerged however that he had dropped her at the station and she said that he had things to do to prepare for going away the following day”. Please clarify how she implied that her husband was offshore, and how it then emerged that he had dropped her at the station when she told you at the start of the interview was: “Unfortunately my husband's driving up the road so he won't be coming with me” (p. 1 of the transcript)?

In your second report dated 11.9.17 you stated that the Claimant failed to tell you that she failed her 11+ and failed to mention her childhood dyslexia (information she volunteered in both her witness statement & Schedule made available to you before your examination). Please clarify whether you accept that your focussed questions on this period of her life did not afford her the opportunity to volunteer these matters to you because you didn’t ask her any questions about her academic progress, save in relation to her degree? Please clarify by reference to the transcript at what point during your assessment you say she ought to have volunteered these matters? This is a reasonable clarification question given that the Claimant is asserting that Dr Torrens has been unfair to her.

On p. 68 of your report you stated: “What Ms Mustard herself is most in need of, to my mind, is some sensitive, skilled and fairly lengthy psychological help. I am not sure however that she would share my opinion.” Given the likely importance you would invite a Court to attach to this closing paragraph in your report, please clarify whether at the time you made the comment, you recalled that you had discussed CBT with Ms Mustard during your assessment and that she told you that the CBT therapy she was having with the psychologist, Miss Levett, that had been “very helpful” (see p. 38 of the transcript). A reasonable clarification question when the expert has been unfair to the claimant in recording her history

You stated at p.52 of your report that POTS is an interesting condition that is commonly associated with other conditions considered to have at least a partly functional basis. Please clarify whether as a non-medically qualified psychologist you consider POTS to be within your area of expertise or whether you defer to the neurological and neuro-surgical experts in the case? A reasonable clarification question given that Dt Torrens is venturing outside her apparent area of expertise.

In your sixth report (p. 18) when you summarised the Claimant's GCSE’s you omitted her grade

When you came to sign off your first report, you had only reviewed three of the 10 witnesses statements in the case. You reviewed the remainder in your sixth report dated 18.12.18, including the statements from her managers and colleagues and concluded from them that the Claimant “was punching well above her weight in her job” [6,49]. Please clarify whether the cognitive and behavioural symptoms described by those witnesses are consistent with brain injury? This is a reasonable extension question given that Dr Torrens failed to comment on the reports of cognitive and behavioural symptoms by the witnesses. The Court is entitled to know her opinion on the range of likely opinion in light of those materials.

Please clarify whether those statements, in your view, support the observation that there was a step-wise change in her ability to function in the workplace and in her home life immediately following in the index car accident?

Please clarify whether you were able to identify any alternative traumatic insult, unrelated to the direct or indirect consequences of the index accident, that could be said to be the trigger for the decline in her levels of function after that point in time?

At p.67 of your first report you stated: “She is at best a hypochondriac, possibly somewhat work shy or struggling at work, but, worse, I think that the extent of her willingness to submit to invasive procedures and investigations does raise the possibility of Factitious Disorder”. Please clarify if you carried out a mental health assessment for Factitious Disorder, and if so, please confirm where on the transcript that assessment can be reviewed and what your findings were in relation to the DSM-5 criteria 1-4 of that disorder.

Please review the conclusions of Dr Surenthiran (the Defendants’ audio-vestibular surgeon) that the Claimant presents on objective testing with two self-standing and potentially disabling audiovestibular diagnoses (“migraine variant balance disorder and “BPPV”) which account for many of her reported cluster of enduring symptoms. Please clarify whether such objective and

Please review the conclusions of Mr Kellerman (the Defendants’ neurosurgeon) who concluded that she presented with a SAH on 23.01.14 (unrelated to the accident) which accounted for many of her reported cluster of enduring symptoms. Please clarify whether such a diagnosis effectively excludes Factitious Disorder and/or malingering as a differential explanation?Ditto.

In your fifth report dated 28.8.18 you stated that the Claimant “is either being caused iatrogenic psychological harm via incessant reinforcement of her illness seeking behaviour or is simply wasting precious resources and money by deliberately exaggerating/falsifying her complaints with a view to personal gain.” The allegation that the Claimant may be deliberately falsifying her complaints in order to defraud an insurance company is a serious allegation and should not be made lightly. Please clarify precisely each complaint that the Claimant has made that you say that she is falsifying deliberately.