Long v Elegant Resorts Ltd

- Circumstances of the accident and its immediate aftermath 42

- Symptoms and diagnosis/diagnoses immediately after accident 51

- Symptoms and diagnosis/diagnoses from May 2015 75

– Allegations of exaggeration 95

– Allegations of dishonesty 98

- Fundamental Dishonesty 100

- Contributory negligence 100

- Quantum 101

The Claimant, who was born on 24 May 1973 and is therefore now 47 years old, was injured in an accident at work on 22 March 2015. At that time, he was employed by the Defendant, a company based in Chester, as their Head of IT. On the day of the accident he and another employee of the Defendant, Mr Craig Jones (who was employed at the time as a Facilities Assistant, but now is the Defendant’s Facilities Manager), were involved in removing items from the cellar of premises known as the Old Palace in Chester. These premises had been occupied by the Defendant as offices, but which were to be handed back to the landlord. It is common ground that, during the course of this work, the Claimant went to assist Mr Jones and, in so doing, struck his head on a low part of the ceiling of the cellar.

The Claimant contends that the accident caused a Traumatic Brian Injury (“TBI”) and that its aftermath has had a serious effect upon his life. He brings this claim against the Defendant for damages for personal injuries and consequential losses allegedly sustained as a result of the accident.

The Defendant admits its liability for injuries caused by the accident but says that this was no more than a bump to the head of a kind which people suffer regularly and which has led to no long-term consequences at all. In addition, the Defendant contends that damages should be reduced by reason of the Claimant’s alleged contributory negligence in respect of the happening of the accident.

The trial took place in late February/early March 2021. By reason of the COVID-19 pandemic, it was agreed that much of the evidence and submissions should be heard remotely. However, the parties favoured the evidence of the Claimant himself being given in person. Given the serious allegations made against him by the Defendant as set out below and the importance of his credibility, it seemed to the parties that the interests of justice called for Mr Long to give evidence in person and for this reason the first day of the hearing was accommodated in the Royal Courts of Justice, with Counsel, the Claimant’s solicitor, the Claimant and the Claimant’s wife attending in person. Other people, including the Defendant’s solicitor and medical experts were able to attend remotely using the CVP system. The trial lasted in total seven days, of which a small part of the first day and the entirety of the final day was spent in dealing with submissions, the evidence spanning nearly 6 days, some of which were longer than the usual court day.

Whether it was strictly necessary for the Claimant’s evidence to be given at an in-person hearing is a moot point. Like Mr John Kimbell QC, sitting as a Deputy High Court Judge in Hyde et al v Nygate (One Blackfriars Limited) [2021] EWHC 684 (Ch), I have found that remote hearings generally allow the Judge to have at least as good an opportunity to assess the reliability and credibility of a witness as do hearings in person. Whilst there may be other reasons to hold attended hearings when circumstances allow, I have not found any reason to think that my ability to assess witnesses in a remote hearing is less than satisfactory. It certainly did not do so in respect of the witnesses who gave evidence remotely in this case.

During the trial, I heard from the following lay witnesses called for the Claimant:

In addition, a statement of Mr Heinz Kneubuehl (another former work colleague of the Claimant) dated 15 July 2019 was relied upon by the Claimant. The Defendant did not challenge his evidence and it was not necessary for him to be called to give oral evidence.

The Defendant called Mr Craig Jones. His statement is dated 13 November 2018.

I heard from the following expert witnesses on behalf of the Claimant:

I heard from the following expert witnesses on behalf of the Defendant:

Joint statements have been prepared between experts of like discipline as follows:

The submissions and evidence first six days of the trial was transcribed and hence I have available to me that transcript as well as my own notes of evidence. The transcript appears to be largely accurate though inevitably there are occasional points at which it appears erroneous. In the verbatim quotations in this judgment, I have taken the passages from the transcript without correction, though have noted where I think the transcript may be inaccurate.

I have been assisted in preparing this judgment by the written submissions, both opening and closing, from counsel for both parties. I am grateful to them for the efficient manner in which they dealt with the case and for their clear submissions on issues which are far from straightforward in fact. I should express particular gratitude to Mr Grant for his written chronology, since I have lent heavily on it in the preparation of this judgment and indeed it forms the basis though is not the sole source of the chronological presentation of medical records below. I have divided this chronology between the passages of my judgment dealing with Issues 1, 2 and 4, as set out below (that is say pre-accident, the accident to the Claimant being made redundant and events since the redundancy). Where medical records are referred to in other parts of the judgment, the relevant references should be found within those three parts of the chronology.

The trial bundle in this case ran, with the addition of extra documents included during the trial, to 3,857 pages. These pages include many (though it would seem by no means all) of the

The Claimant has a history of work in the IT industry, both as an employee and running his own company. He obtained a job with the Defendant as head of IT starting on 30 June 2014, earning £50,000 gross per annum. The job was subject to a probationary period which ended in December 2014, following which his job was made permanent. His pay was increased to £51,000 per annum shortly after the accident.

At the time of the accident, the Claimant lived in Norwich with his family, but spent the week working at the Defendant’s base in Chester. His parents live in Shavington (near Crewe) and his practice was to stay with them whilst working.

It is common ground that, shortly before the accident, the Claimant became aware of circumstances that gave rise to the possibility that his job might become redundant. I deal with the detail of this further below.

The accident occurred on Monday 23 March 2015. The Claimant’s account is that he and Mr Craig Jones were in a hurry to carry out certain tasks before handing the building, the Old Palace, over to the landlord. They were in the cellar, an area described by him as having

“domed” ceilings – the word “vaulted” might better describe them. The plan below, from page 2932 of the trial bundle, shows the approximate layout (Footnote: ¹):

Mr Long states (and Mr Jones broadly agrees) that he was in the seating area, when he became aware that Mr Jones, who was in the kitchen, was struggling with a large and awkward object. Both the seating area and the kitchen were lit, but the room between, the pool room, was unlit.

It would appear that the Claimant continued to work for the remainder of the day. He has no recollection of whether he attended the gym after work (as suggested by Mr Craig) but he recalls being at his parents’ home that evening and suffering a “strange tingling sensation all over my body.”

On the following morning (Tuesday 24 March, the Claimant went to the Countess of Chester Hospital (“CoC”) (which is, as the name might be thought to suggest, in Chester), probably after first attending his father’s GP Practice (Footnote: ³). He was discharged from the CoC on the same day with “written advice”. It is common ground that that was probably head injury advice.

On Wednesday 25 March, he returned to Norwich, driving himself. He recalls stopping for a sleep, which he says was unusual.

The Claimant states that his next recollection is being on the bathroom floor at his parents’ house vomiting. He states that this was Sunday 29^th March, a date confirmed both by his wife and by his father as the day on which he travelled back from Norwich to Shavington. On the following day, he again attended CoC and was admitted until 3 April 2015. He then returned to Norwich and had some time off work.

He attempted a return to work on 20 April, but only lasted a few hours. On that day, he was told that he was to be made redundant and this took effect on 14 May 2015. The Claimant appealed the redundancy dismissal, by letter dated on or around 14 May 2015. The Claimant challenged the lawfulness of the redundancy process, apparently on grounds of disability discrimination (Footnote: ⁴). It has become apparent⁵ that the employment claim had been settled by the Defendant paying £5,575 to the Claimant, on terms that were expressed to be “without admission of liability.”

Since the accident, the Claimant has complained of a variety of symptoms that have severely compromised his ability to work or to function normally, namely: memory problems, difficulties with concentration and problem solving; word finding difficulties; polyopia (multiple visual images); vertigo; balance difficulties; fatigue; anger; avolition; and light and noise sensitivity. These have, on his case, caused a severe depressive disorder.

The Claimant accepts that, at the time of the accident, he had a pre-existing medical history that has been diagnosed as fibromyalgia and which involves somatoform symptomatology. His claim for damages is formulated on the basis that he suffered a mild Traumatic Brain Injury (“mTBI”) in the accident that has developed into a Functional Neurological Symptom Disorder (FNSD) and Neurocognitive Disorder due to TBI with Behavioural Syndrome. He contends that, but for the accident, he would not have suffered FNSD. Whilst there was a probability that the Claimant’s pre-existing fibromyalgia/somatoform symptoms would have recurred, particularly in times of stress, this would not have interfered with his ability to work in a responsible and well-paid job. Further, whilst, absent the accident, the circumstances of his being made redundant may have caused a short-lived adjustment disorder, the redundancy would not have caused a severe depressive disorder of the kind or severity that he has in fact suffered.

On his case, he remains unfit to work at the level that he did prior to his accident, though recently (since his witness statements in this litigation) he has obtained paid employment as a gardener at a National Trust property in Norfolk, Felbrigg Hall, where he now works for 18¾ hours per week, earning £8,676 gross per annum.

In so far as his honesty and/or accuracy is in question, the Claimant contends that he has always attempted to give a true and accurate account of medical matters, but that to some extent this has been confounded both by the nature and the complexity of his medical history. It is contended on his behalf that his account of the accident and its aftermath is essentially consistent. In so far as the account of his redundancy and its significance is brought into question, the Claimant contend that that the Defendant has fundamentally misunderstood his explanation of discovering the possibility that he might be made redundant. In any event, the Claimant draws attention to the failure of the Defendant to adduce any evidence to contradict his account and the fact that the Defendant compromised his claim arising out of the dismissal in circumstances that could only be consistent with a realisation on the Defendant’s part that it might be found responsible for a dismissal that was unlawful on grounds of disability discrimination.

The Defendant is sceptical as to both the accuracy and the honesty of the Claimant’s account relating to the accident and its aftermath. It contends that his accounts are unreliable and at times contradictory. This is so in particular in relation to the circumstances of his redundancy, but extends to his description of medical symptoms which, the Defendant contends, is for a variety of reasons unreliable.

The Defendant relies on the combination of the eyewitness account of Mr Jones, various features of the contemporaneous accounts of the Claimant and the medical evidence as to the severity of the injury in support of its case that the Claimant suffered no, or no significant, TBI.

As to medical formulation, the Defendant denies that the circumstances of the accident were capable of, or did in fact, cause a mild TBI. In so far as the Claimant has genuinely suffered symptoms which he perceives to be organic and physical in nature, the Defendant contends that these are in fact an extension of a pre-existing condition, best diagnosed as a Somatic Symptom Disorder (“SSD”). The Defendant accepts as genuine at least some of the symptomatology of the Claimant, in so far as it is a consequence of a severe depressive disorder. But the Defendant contends that the cause of that disorder was the redundancy and/or underlying SSD rather than the accident on 22 March 2015.

Further, the Defendant contends that the Claimant has been dishonest in his account both to experts and the court of his symptoms and their interrelation with employment to the court. This dishonesty compounds his unreliability but also brings into play the concept of Fundamental Dishonesty and the effects of Section 57 of the Criminal Justice and Courts Act 2015.

In his opening submissions, counsel for the Claimant set out eight issues which he contended the court needed to consider.

In his closing submissions, counsel for the Defendant formulated his case under the following headings:

As always, it is possible to refine and redefine the issues in the case as it proceeds. Further, the same issues may often be expressed in differing ways and grouped together differently. I am conscious that there is considerable overlap between the issues identified in each of these lists.

For the purpose of this judgment, it seems to me that the issues can most conveniently be grouped as follows:

It is a trite observation that the memory of witnesses may be undermined by a variety of factors. In the well known and often quoted passage from his judgment in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560, Leggatt J, as he then was, said in respect of evidence based on recollection:

Similar issues as to the fallibility of memory and its ability to be distorted are addressed in Practice Direction 57AC “Trial Witness Statements in the Business and Property Courts,”

That is not to say that the court may or should simply dismiss witness evidence when it is inconsistent with documents. As Floyd LJ said in Kogan v Martin [2019] EWCA Civ 1645 (citing the judgment of HHJ Gore QC in CXB v North West Anglia Foundation NHS Trust [2019] EWHC 2053 as to the caution to be exercised in applying the above passage from Gestmin in the particularly in the context of non-commercial disputes), “a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence” (emphasis in the original). This is particularly so where, as here, one is concerned with documents that are (largely) not created or attested to by the witness whose accuracy and/or credibility is an issue, but rather by third parties such as doctors who, whilst usually at least can be taken as intending to make an accurate record, inevitably introduce a degree of subjectivity into that which they record. Nevertheless, it seems to me that the court should have regard to those factors which may tend to distort witness statements, both in assessing the reliability of the witness evidence and in considering why distortions may have arisen.

In the expert evidence within this case, the experts have distinguished between true post traumatic amnesia (which is attributed to a failure to form continuous memory because of trauma) and memory attrition, described by Dr Bourke as the tendency forget less salient events that arise between more significant events. This is a distinction that may be more easily stated than identified, since post traumatic amnesia is often seen as involving islands of memory being formed in a sea of events in respect of which continuous memory is not laid down, whereas attrition of memory involves the contemporaneous laying down of memories of all events, but the subsequent fading of memory for less significant matters. Whilst all the experts broadly held that view as to the significance of post traumatic amnesia to memory, there is some difference

As I have indicated, I accepted that it was desirable that I see Mr Long give evidence in person. This enabled me to make certain assessments of his evidence that may have been more difficult and evidence been given remotely by video link.

Mr Long was polite and careful in giving evidence. In their first joint statement, Dr Bourke and

Evidence of the pre-morbid personality traits described by the doctors was apparent in the Claimant’s attempts in his oral testimony to rationalise matters and to explain parts of the evidence that might have seemed inconsistent. An example is the Claimant’s explanation as to why he states that he was running round than walking at the time of the accident. As I note at paragraph 105 below, I gained the impression at this point that the Claimant might tend to give evidence based upon a rationalisation of what occurred rather than being based on a true recollection. This causes me caution in accepting his evidence when it is contradicted by other material.

In general terms, I did not form the impression that he was trying to tailor his evidence, although there are issues about his speed of movement at the time of the accident and a lump to his sternum, both addressed below, which might have been interpreted in this way. He dealt with the challenges of cross examination without any appearance of cognitive impairment or what at one stage was called “brain fog”. He did not show any obvious signs of tiredness beyond that which one might expect of somebody who had travelled some distance to give evidence on important matters. There were no obvious speech or contemporary memory problems.

Overall, the assessment I made was that Mr Long appeared to be performing rather better than one might expect, having regard for example to Dr Bourke’s account of the current symptoms in his report of January 2020 at paragraph 3.2.8 (based upon a re-assessment on 21 October 2019) and to the description of his post traumatic state in the joint statement of Drs Bourke and Bird. However, I am conscious that the impression that a person gives in the witness box is not necessarily a fair indication of their cognitive state. Furthermore, the Claimant accepted that his condition has continued to improve and accordingly a comparison with a description of his condition, based upon an assessment more than 16 months ago, may be unhelpful.

I do not consider that I can draw any strong conclusions as to Mr Long’s current level of functioning, still less his historic level of functioning, from his presentation in the witness box. On the vital issue as to whether the Claimant has deliberately made untrue statements, there was nothing in the Claimant’s demeanour to suggest that he was someone prone to lying or exaggerating. The issue of credibility requires careful analysis of what Mr Long has had to say various times, together with the circumstances in which he said it and a proper understanding of his medical condition. It is necessary to compare the Claimant’s evidence on a variety of issues, looking at what is supported or contradicted by other material, what is inherently plausible or implausible and what is internally consistent or contradictory. One must further look with care at the extent to which the Claimant’s reliability or unreliability on particular issues may support or undermine the credibility of his evidence more generally. None of this can be deduced from his demeanour in the witness box.

In two respects, counsel for the Defendant alleges that there is evidence that Mr and Mrs Long have colluded in giving their evidence. Such collusion, in the sense of giving an account pursuant to an agreement to give false evidence or simply an account that was agreed between the witnesses, would, if proved, seriously undermine the credibility of Mr Long. For the reasons set out below, when dealing with the evidence of Mrs Long, I consider that the points made by the Defendant in support of the allegation collusion have some force in my assessment of the reliability of her evidence but do not impact upon my assessment of the reliability of Mr Long himself.

In assessing Mrs Long’s evidence, I bear in mind that, as the long-standing wife of the Claimant, she is likely to wish to be supportive of his evidence. Much of what she knows of his condition must, inevitably, result from discussions with him. Insofar as she has independently observed features of his condition, her evidence in respect of that is likely to be influenced by those discussions, such that now it may be difficult to distinguish that which she genuinely remembers from that which she believes to be the case because of discussions with her husband. Though tending to undermine her reliability, this does not necessarily bear upon her genuineness or honesty.

The first of the allegations of collusion between the Claimant and his wife relates to his presentation to his General Practitioner on 6 May 2015 with what was suspected to be pain to the xiphisternum. The consultation and subsequent investigation have other significance, noted below, but the allegation of collusion relates to the trigger for the Claimant attending his

The second allegation of collusion relates to Mrs Long’s account of a conversation with Mr Long relating to his discussions with Mr Redmond Walsh about redundancy. In his evidence,

In the May 2015 Document, the Claimant speaks of contacting his line manager, Ms Sharon

In oral evidence, Mrs Long’s said that Mr Long had mentioned the discovery to her in a telephone conversation. She said “…it was like a really meaningless conversation because just says (Footnote: ⁶): “Have a word with Redmond and he will talk,” you know, “you can talk about it to Redmond,” and that is what Stephen did…” The “collusion” alleged between Mr and Mrs Long was in the assertion that, having made the discovery, Mr Long spoke to Mr Walsh and his concerns were assuaged, a point which, if correct, goes a considerable way to weaken the

Of the first of the allegations of collusion between Mr and Mrs Long in respect of their evidence, it is difficult to accept that they would have anticipated in advance of the trial that the

In fact, there are two far more probable explanations of each of these incidents. The first is that each of the witnesses was doing their best genuinely to remember what happened and that they have each broadly given an accurate account. The second is that that Mrs Long has tailored her oral evidence to meet the account given by her husband (which was given on the day before she gave evidence). As these are the only two frank examples of suggested collusion between the witnesses, I reject the allegation that they had deliberately sought to give accounts that are consistent but untrue.

On the other hand, I note below another example of evidence given by Mrs Long (in this case relating to the Claimant stopping on a journey from Norwich to Cheshire in order to vomit) which appears to match that of her husband given for the first time by him in the witness box, yet that was not set out in her witness statement. Taking these three aspects of her evidence together, I consider it more probable than not that Mrs Long has tailored her evidence in the light of what her husband had to say. This, together with the other points made above, cause me to be cautious in placing any considerable weight upon Mrs Long’s evidence. In so far as I feel able to do so notwithstanding that causation, I identify where I have below. However, I should make clear that caution is not based upon a finding of dishonesty on her part, but rather a concern that her account tends to follow that of her husband’s rather than being based on independent recollection and is therefore unreliable. Had her honesty been a discrete issue in the case, I would have needed to explore this matter further; given that it is not, it suffices for me to conclude that I have concern about her reliability as a witness where her evidence is uncorroborated. This is not to say that I reject her uncorroborated evidence out of hand - for example, on one issue relating to the Claimant’s alleged loss of the sense of taste and smell, I found her account convincing as noted below.

Each of the three of Mr Long’s children who gave evidence, Peter, Harvey and Sophie, confirmed both that their father’s mood and motivation had deteriorated during 2015 and that it had more recently improved. I was particularly struck by the comment from his daughter during cross examination that the voluntary work at Felbrigg Hall, that had led to paid employment “has helped him to get into a bit of a routine and because obviously he is very like workorientated, he enjoys working and being busy and things, so I think him volunteering and now in work it has given him like a purpose and a motivation.” This spontaneous comment rang true and I accept the evidence of each of the three witnesses as to the deterioration in their father’s condition in 2015 (which is consistent with other evidence) and his recent improvement, with the proviso that, as each of them accepted, they knew very little of the detail of his health problems in around 2007-2008.

The Claimant’s father, Reverend Anthony Long, gave evidence. His account was of some significance to the Claimant’s condition both over the two days immediately following the accident and following his return to Shavington on Sunday 29 March 2015. Rev Long was careful in answering questions. If he were seeking to support his son’s claim by giving false or exaggerated evidence, he had plenty of opportunities to add detail to his account when he was asked about events following the accident, yet he did not. Further, his measured answers gave no suggestion that he was prone to exaggeration, whatever temptation there might have been to do so out of family loyalty. I am satisfied that Rev Long was an honest and credible witness.

The Claimant relied upon the witness evidence of his former work colleagues, Messrs Kneubuehl, McMahon, Weston and Croston, and his former accountant, Mr Smedley, in part to substantiate his case that he was previously functioning well in his work. To that extent, the evidence was clearly both admissible and potentially of assistance. Its significance is extent undermined by the fact that most of the contact that these witnesses had with the Claimant was prior to the admitted and undoubted crisis in his health in 2007/2008.

The most helpful evidence in relation to Mr Long’s more recent functioning was the one witness who was not called because not challenged, Mr Kneubuehl, since he was able to speak to Mr Long’s presentation in particular in the period 2009 to 2011, which gave the “lasting impression that [the Claimant] was very capable and efficient.” I accept that this was an honest and accurate summary of how Mr Kneubuehl found the Claimant in this period.

The second purpose of calling Messrs McMahon, Weston and Croston (but not Mr Kneubuehl) was to support the Claimant’s contention that his potential earning capacity was significantly greater than that which he was earning at the time of the accident (£51,000 per annum). Mr McMahon said that, if one were to recruit someone like Mr Long into the companies in which he is involved, it would be necessary to offer a package in the region of £150,000-£250,000 per annum together with share options; Mr Weston said that he would expect to pay Mr Long in the region of £150,000 per year; and Mr Croston, who considered himself to be employed in a role that Mr Long could fulfil, stated that he earns “a six-figure salary.”

In each case, the evidence of the witnesses is in the nature of expressing an opinion. It might be that each of them has some expertise sufficient to give opinion evidence, but that is entirely untested by the process of expert evidence being given by (usually) independent witnesses, whose duties to the court are very different from those of lay witnesses and whose expertise is made clear. None of these witnesses have carried out the kind of analysis that one would expect of an expert witness giving evidence upon the Claimant’s earning capacity, nor are any of the usual procedural protections in respect of expert evidence in place.

Their evidence on this issue can be looked at in a different way. Each of them bases his opinion on earning capacity upon his knowledge of Mr Long prior to the undoubted crisis in his health in 2007/2008 - indeed, in Mr McMahon’s case, his knowledge of Mr Long was of a “rising star” some 15 to 20 years ago. If Mr Long were in fact capable of commanding a salary in excess of £100,000 (double what he was earning at the time of the accident) or as much as £250,000 (five times what it was earning at the time of the accident), one might wonder why he was working for the Defendant in so relatively an ill paid role. The Claimant’s case is that he was doing work which satisfied him and that the level of earnings was only one issue. That may be so, but both

I accept the evidence of these witnesses that, in their professional dealings with him, they found Mr Long to be competent and, extrapolating from historic experience, capable (all things being equal) of earning more than £51,000. But their evidence is incapable of supporting the conclusion that, but for the accident, the Claimant was capable of obtaining jobs earning in the range £100,000 - £250,000, on the grounds both that that is expert evidence upon which the Claimant has no permission to rely and that their evidence is insufficiently robust to support that conclusion. Furthermore, it is strongly arguable that, given the crisis in the Claimant’s health in

Mr Craig Jones, who was called by the Defendant, gave his evidence in an entirely straightforward manner. The Claimant understandably does not suggest any motive on Mr Jones’ part to misrepresent matters nor any obvious reason why his evidence should be unreliable. That said, there are certain details surrounding the accident and its immediate aftermath which require closer consideration having regard to other evidence in the case. I deal with this below.

In closing submissions, counsel for each of the parties was critical part of the expert evidence adduced by the other side. On behalf of the Claimant, Mr Grant was critical of Dr Heaney for seeking to incorporate requirements into the Mayo classification for TBI that cannot be found there. He also complained that Dr Heaney had scant regard to his duties to the court as an expert, as demonstrated by his willingness to reveal matters to the Defendant’s legal team that has been discussed in the joint meeting but had not been set out in the joint statement. He criticised both Dr Heaney and Dr Bird for what he contended was an inadequate analysis of the issue of post-traumatic amnesia. He was in particular critical of Dr Bird for having initially reported on the Claimant by way of review of medical records alone rather than medical examination. Mr Grant suggested that this was improper, if not unethical.

Mr Dignum QC for the Defendant was, in his own words, “pretty uncomplimentary” about Dr

In truth, experts for both sides could in principle be criticised for having failed fully to set out their opinions in advance of the trial and/or for having changed their opinion during the course of the case. My strong impression was that all the expert witnesses were seeking to assist the court in what they found to be a particularly difficult case. For reasons that I shall deal with later, the Claimant’s descriptions of symptoms are often florid with a distinctly functional air. The accounts have to some extent developed as the litigation has proceeded. It is not surprising that an expert dealing with such evidence and seeking to give a clear explanation of their opinion as to the probable cause and nature of the symptoms will find themselves considering new theories or at least will develop existing theories in light of the merging picture. Some parts of their evidence are more convincing than other parts. In particular where opinions were expressed for the first time in the witness box or during oral evidence developed beyond what was said in the reports and joint statements, the opinions are likely to be less convincing, if only because they are less thought through and are usually less well explored. However, I did not

The attempt by Mr Dignum to cross examine on what Mr Heaney had told him about discussions during the joint meeting with Dr Nichols was, as Mr Dignum accepted, a misjudgement on his part. But, whilst CPR 35.12(4) effectively creates a privilege against reference to the contents of joint discussions during the trial, neither the Rules, the Practice Direction or the Guidance prohibit an expert telling the legal team that have instructed him about the contents of those discussions. I do not hold this matter against Dr Heaney.

As for Dr Bird having reported on the Claimant’s psychiatric condition without having seen him, Mr Grant referred to the so-called Goldwater rule, apparently a rule of American psychiatry that psychiatrists should not give an opinion on a patient that they have not had the opportunity to examine. Dr Bird agreed that one should be cautious about doing this and that it was possible to understand from the perspective of the patient how long it might be for a psychiatrist to diagnose a condition that had never been diagnosed before, simply based on a review of medical records, without any face-to-face consultation. Whilst I share the concern about the wisdom (and possibly the ethics) of preparing a psychiatric report without seeing the patient face-to-face, it does not seem to me that, of itself, this undermines Dr Bird’s evidence. I bear in mind however the argument advanced by the Claimant that Dr Bird reached a conclusion based on an assessment of the Claimant’s condition without having seen him that may have influenced his subsequent opinions in the case.

Insofar as relevant, section 57 of the Criminal Justice and Courts Act 2015 (“CJCA 2015”) provides as follows:

“Personal injury claims: cases of fundamental dishonesty

(1)

This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”) —

a.

the court finds that the Claimant is entitled to damages in respect of the claim, but

b.

on an application by the Defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the Claimant has been fundamentally dishonest in relation to the primary claim or a related claim.

(2)

The court must dismiss the primary claim, unless it is satisfied that the Claimant would suffer substantial injustice if the claim were dismissed.

(3)

The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the Claimant has not been dishonest.

(4)

The court’s order dismissing the claim must record the amount of damages that the court would have awarded to the Claimant in respect of the primary claim but for the dismissal of the claim.

(5)

When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the Claimant to pay in respect of costs incurred by the Defendant…”

In considering whether an allegation of dishonesty is made out, the court must bear in mind the following:

As to whether any dishonest conduct should be found to be “fundamental”, Julian Knowles J in London Organising Committee of the Olympic and Paralympic Games v Sinfield [2018] EWHC 51 at paragraph 61 conveniently sets out the law. Having reviewed the authorities, he stated:

“In my judgment, a Claimant should be found to be fundamentally dishonest within the meaning of section 57(1)(b) if the Defendant proves on a balance of probabilities that the Claimant has acted dishonestly in relation to the primary claim and/or a related claim … and that he has thus substantially affected the presentation of his case, either in respects of liability or quantum, in a way which potentially adversely affected the Defendant in a significant way, judged in the context of the particular facts and circumstances of the litigation.”

In its defence, the Defendant reserved its position as to what injuries the Claimant had suffered as a result of the accident. By the time of the service of the Counter Schedule dated 18 September 2020, the Defendant’s position had hardened to the following:

In the Defendant’s written skeleton argument, served for the purpose of trial, the Defendant added to this:

During the trial, counsel for the Claimant at various points objected to lines of questioning by counsel for the Defendant on the ground that they went to issues of dishonesty that had not been pleaded. In this regard, I bear in mind the judgment of Newey LJ in Howlett v Davies [2017] EWCA Civ 1696. At paragraph 31 of his judgment, he said:

“Statements of case are, of course, crucial to the identification of the issues between the parties and what falls to be decided by the court. However, the mere fact that the opposing party has not alleged dishonesty in his pleadings will not necessarily bar a judge from finding a witness to have been lying: in fact, judges must regularly characterise witnesses as having been deliberately untruthful even where there has been no plea of fraud. On top of that, it seems to me that where an insurer in a case such as the present one, following the guidance given in Kearsley v Klarfeld [2006] 2 All ER 303, has denied a claim without putting forward a substantive case of fraud but setting out ‘the facts from which they would be inviting the judge to draw the inference that the plaintiff had not in fact suffered the injuries he asserted’, it must be open to the trial judge, assuming that the relevant points have been adequately explored during the oral evidence, to state in his judgment not just that the Claimant has not proved his case but that, having regard to matters pleaded in the defence, he has concluded (say) that the alleged accident did not happen or that the Claimant was not present. The key question in such a case would be whether the Claimant had been given adequate warning of, and a proper opportunity to deal with, the possibility of such a conclusion and the matters leading the judge to it rather than whether the insurer had positively alleged fraud in its defence.”

During closing submissions, counsel for the Claimant made the valid point that the demands of ensuring that costs are proportionate means that a Claimant cannot be expected to incur cost in exploring factual issues in advance of a trial which are apparently peripheral, merely in order to cover the risk that, at trial, the Defendant will cross-examine on those issues and seek to establish inconsistencies in the evidence which are then said to be evidence of dishonesty.

In my judgment, the court must be careful about drawing conclusions adverse to the honesty of a Claimant from evidence about peripheral issues, most particularly where the Defendant has not given adequate advanced warning of its intention to raise the particular issue. Indeed, having regard to the passage from Howlett v Davies referred to above, the court would doubtless consider preventing cross-examination in such circumstances, on the ground that fairly reaching a conclusion adverse to the Claimant and that therefore the cross-examination was inappropriate. This was the approach taken by HHJ Coe QC in paragraph 14 of her judgment in Pinkus v Direct Line [2018] EWHC 1671 (QB) and it is one with which I agree. I would have been minded to apply the same principle to cross-examination on peripheral matters which a Claimant has understandably declined to investigate, having regard to the need to conduct litigation at proportionate cost.

In this case, the Defendant has adequately given notice of its intention to explore the circumstances of the Claimant’s redundancy. Ironically, the lack of investigation of this point has been arguably more on the Defendant side that it has been on the Claimant’s (at least insofar as evidence placed before the court is concerned), a point of some significance on this issue, as identified below. However, I see no unfairness in the Defendant having been allowed to explore the issue and thereafter seeking to draw an inference of dishonesty from the evidence, given that this is a central issue in the case. Further, insofar as the court has been concerned with the genuineness of the Claimant’s symptoms, his reliability as a historian has been an issue throughout the case. The alleged tendency to exaggerate has arisen more recently and in any

I should add that I have had regard to the judgment of Master Davison in Mustard v Flower [2021] EWHC 846 which was heard and decided after I heard the trial in this case and therefore was not referred to in submissions. I would agree with his analysis of the law, which is close to mine as set out above.

The following medical records set out the main events of note in the Claimant’s pre-accident medical history. Except for the entry for 14 May 2008 (Dr Karbowinska-Majewska’s Incapacity for Work Medical Report Form) all comprise conventional medical records relating to the examination and treatment of the Claimant. Where they are quoted verbatim, the passages appear in italics. Other passages not in italics are summaries.

The Claimant’s corresponding working history is dealt with at paragraphs 5 to 23 of his first statement. In summary, he had worked in a variety of roles in IT since leaving university, sometimes employed by others, sometimes in companies that he had set up or on a freelance basis. His working life was disrupted by health problems from 2006 to 2011, though the only prolonged period of being out of work was in 2007. His employment with the Defendant had started in 2014. He had served a probationary period and then had been taken on in a permanent role. He states that he had a full attendance record with the Defendant. The Defendant has not disputed this despite having the means to do so if it wished. Further, in a questionnaire provided by the Defendant to Scottish Provident after his employment was terminated, it is asserted “no previous sickness absence.” Accordingly I accept the Claimant’s assertion as to his full attendance record.

However, on 10 March 2015, the Claimant says he made the discovery that his job was at risk of being made redundant referred to on the issue of collusion above. The circumstances of that discovery are set out further at paragraphs 170ff below.

Before turning to the expert evidence within this case, certain points can it seems to me properly be made simply from a lay review of the medical records:

There is no significant disagreement in expert opinion on the issue of the Claimant’s preaccident diagnosis save as between the neuropsychiatrists.

The neurologists noted that he had been diagnosed with fibromyalgia. Dr Heaney considered that the history of chronic pain with prescription of pain killers was relevant to symptoms after the accident. Dr Nichols indicated that the diagnosis and management of fibromyalgia does not fall within the usual expertise of a neurologist and deferred to rheumatological opinion. He considered that the potential impact of the pre-accident symptoms on the Claimants symptoms after the accident fell within the domain of the neuropsychologist and/or neuropsychiatrist rather than the neurologist.

The neuropsychologists agreed that there was no evidence that the Claimant suffered neurological or neuropsychological disorder prior to the accident. They defer to the neuropsychiatrists on issues of pre-existing psychiatric symptomatology. They noted that he had previously reported cognitive difficulties and fatigue in the context of pain management and analgesia but that there was no evidence of continuing cognitive difficulties the time of the accident. They noted that, while he reported that the symptoms of fibromyalgia had resolved prior to the accident (Footnote: ⁸), the medical records indicated that he continued to be prescribed medication for pain symptoms and sleep problems.

The neuropsychiatrists, Dr Bourke and Dr Bird, agree that the Claimant had a history of what

ICD10 says of somatoform disorders: “The main feature of somatoform disorders is repeated presentation of physical symptoms, together with persistent requests for medical investigation in spite of repeated negative findings and reassurances by doctors that the symptoms have no physical basis. If any physical disorders are present, they do not explain the nature and extent of the symptoms or the distress and preoccupation of the patient…”

Dr Bourke notes evidence of distress in the presentation of symptoms prior to the accident but indicates that this reduced once a diagnosis of fibromyalgia was made. He considers that the Claimant’s condition was brought reasonably under control by summer 2014. Whilst there may have been a tendency for the fibromyalgia to recur particularly in response to stresses, the Claimant’s post-traumatic symptoms are better diagnosed as a Functional Neurological System Disorder (FNSD), consistent with a pre-traumatic vulnerability to functional symptoms as demonstrated by the history of fibromyalgia, together with a depressive episode. Dr Bourke considers that the Claimant has also developed an SSD but that this has only arisen since the accident. For reasons set out below, he considers that the diagnosis of SSD could only properly be made once the Claimant’s depressive order began to abate.

Dr Bourke was cross examined about the pre-accident medical records with reference to the statement in ICD10 referred to at paragraph 88 above. In particular, he was taken to the following:

Dr Bourke said of the Claimant’s medical history that “this is not somebody with a chronic somatising history…this is somebody with bona fide identifiable symptoms….These are not meaningless complaint over which he was not reassured. They were complaints that gave him discomfort and as a consequence of that discomfort he attends at his GP and asks for assistance. There was nothing unreasonable about it and there is not documentation actually anywhere, I do not think, referencing his levels of anxiety or concern…”

Dr Bird on the other hand considers that the variety of pre-traumatic symptoms, together with the associated anxiety and focus on health concerns is indicative of Somatic Symptoms Disorder that preceded the accident. In support of the diagnosis of a pre-existing SSD, Dr Bird draws attention to a series of pre-existing medical complaints, summarised in the first joint statement as follows:

“His complaints to his GP, walk-in clinics, specialist clinics, A&E Departments and other emergency clinics pre-accident included the following:

•

Unexplained abdominal pains for which investigations were undertaken

•

Multiple unexplained joint pains (rather than the muscle pains which are typical of fibromyalgia)

•

General malaise

•

Headaches

•

Back pains

•

Sleep disturbances

•

Symptoms felt to be “somewhat non-specific” but not frank fibromyalgia

•

Feeling out of sorts

•

Altered sensation in his toes

•

Fatigue

•

Being so weak he had a fall

•

Various cognitive impairments

•

Problems with fine motor skills

•

Nightmares

•

Psychological complaints including irritability, anxiety, depression and exhaustion

•

Throat complaints and mouth ulcers after a tonsillectomy with no evidence of problems

•

He further mentions the complaint of a lump in the chest which in fact is, he says, a ‘normal anatomical feature’.”

During cross examination, Dr Bird was referred to the section dealing with SSD in DSM5, in particular Diagnostic Criterion B (see above). He was asked what the evidential basis was for reaching the conclusion in this first report that the Claimant had shown such excessive thoughts, feelings or behaviours prior to the accident, when he had not had an opportunity to see the

I take from this that that Dr Bird’s conclusions about the Claimant’s thoughts and feelings relating to his historic health concerns are drawn not from the Claimant’s own account of matters (which as he identifies may be unreliable) but from the medical records. Whilst this approach may in principle be justified, the problem on the facts of this case lies in identifying precisely which elements of the medical history demonstrate such thoughts and feelings. Dr Bird commented in his oral evidence that most of the doctors from a variety of specialisms who had seen the Claimant had “come to a conclusion that whatever they were being presented with was either atypical or else it was perhaps completely unexplained.” The second half of this sentence is somewhat difficult to justify from the notes themselves. No doctor describes the

On behalf of the Claimant, Mr Grant contrasts with Dr Bird’s assessment of the medical records other material that suggests that, notwithstanding a history of somatic symptoms, the Claimant’s fibromyalgia (or whatever terms one wants to give to his perceived symptoms) had abated with careful management. The Claimant had been weaned off opiate medication in late 2012/early 2013 and was managing on Amitriptyline to deal with chronic pain issues and medication to help with sleep problems. The evidence shows that the Claimant had a good working record and was able to maintain full time employment. For example, the Defendant confirmed in a questionnaire from Scottish Provident completed after the termination of his employment that the Claimant had “no previous sickness absence.”

Further, barring the complaints that were diagnosed as fibromyalgia (and any associated low mood or depression), the Claimant’s symptomatology as set out in the medical records at paragraph 80 above appears generally to have had a physical element, identifiable on examination or by investigation. This is notable in particular in respect of his complaint of parotid problems, ulcers and the chest problem associated with the xiphisternum.

Of course, the Defendant points to the fact that the course of the symptoms was not entirely without periods of aggravation. The Claimant’s condition was described as “worse again” on 20 June 2014 and on 6 February 2015 there is reference to the need to increase amitriptyline and to change the Claimant’s treatment for insomnia from zopiclone to zolpidem. But the Claimant says that these are examples of his manging the fluctuating course of his symptomatology rather than demonstrating the kind of excessive thoughts, feelings or behaviours typical of a more generalised SSD.

In so far as the Defendant relies on the isolated reference to depression in the report of Dr Karbowinska-Majewska, Mr Grant pointed out that it was counsel for the Defendant, not the medical experts instructed on its behalf, who was placing emphasis on this matter. The medical experts accepted both that the entry was isolated and that, if it were correct that Dr Karbowinska-Majewska had diagnosed a moderate depression, it would be surprising that she thought it did not need treatment in the context of a person who was not otherwise being treated by a psychiatrist or a psychologist.

It is easy to understand from Dr Bird’s analysis both of the Claimant’s medical history and of the nature of SSD as a fluctuating condition that had he or another psychiatrist assessed the Claimant’s thoughts and feelings during the period prior to the accident that they might have concluded that there was evidence of “excessive thoughts, feeling or behaviours related to the somatic symptoms or associated health concerns” and concluded that the Claimant met the criteria for SSD. But I am not persuaded, even on the balance of probabilities, that such evidence would have been found:

In my judgment, the Claimant’s case on this issue is more persuasive. The Claimant has a history of somatic symptoms, probably most conveniently termed fibromyalgia, which have waxed and waned, with a period of relative crisis in the mid 2000s. This in turn led to a period of heavy opiate use, which caused its own problems but which the Claimant got over in around 2013. Since then, his condition had been largely well controlled with periods when problems have worsened and have required alterations in medication.

However, the other various symptoms complained of seem largely to have involved identifiable symptoms for which the Claimant was understandably seeking explanation. I reject the suggestion that the Claimant was, prior to the accident, suffering some more generalised somatic disorder that could properly be diagnosed as SSD.

I have set out above the bare bones of the factual account of the accident and its aftermath from the Claimant. However, the detail of the accident and its aftermath are significant to several other issues in the case, in particular:

The questions of particular note relating to the circumstances of the accident and its immediate aftermath are:

The Claimant has given the following versions of his movements immediately prior to the impact:

The Claimant’s account as to why he says he was running or jogging (despite being pushed in cross-examination, he did not distinguish between the two words) appears to be based upon the belief that, unless his body and therefore head were moving up and down as a result of having both feet off the ground at times, he would not have struck his head on the ceiling. As the Claimant gave his evidence about his speed at the time of the accident (including the slight variations in his account noted in the previous paragraph), I gained the impression that his

In contrast, Mr Jones’ account is recorded as follows:

During cross-examination, Mr Jones described his recollection of the accident as being

“reasonably clear”. He accepted that, at the time of the accident, the Claimant and he were under pressure of time to complete their tasks in the Old Palace before handing the building back to the landlord. He also accepted that, whilst the room from which the Claimant came and the room in which he himself was standing were lit, the room in the middle, the pool room, was unlit. He accepted that the Claimant (who is about 6 feet tall) might have been able to walk through the doorways without striking his head on the ceiling, although noted the incline from the pool area into the kitchen area which would increase the chance of the person moving in the direction of the Claimant striking his head on the ceiling. Whilst he accepted that he could no longer remember what had happened in the accident, he indicated that he would be minded to rely upon the account given much nearer the time of the accident on 28^th May 2015.

The report to the Health and Safety Executive (“RIDDOR”), which is undated but was apparently prepared by Ms Lloyd, states “what happened:… An individual was in the basement kitchen lifting something. On noticing this individual lifting a colleague rushed (ran) to help him and ran into the top of the doorframe hitting his head.…”

I am satisfied that Mr Jones is correct in his recollection that the Claimant was walking, albeit quickly, rather than that he was running. I reach this conclusion for the following reasons:

I am not dissuaded from this conclusion by the Claimant’s rationalisation that in order to strike his head he must have had both feet off the floor, consistent with jogging or running rather than walking quickly; his argument as to the restrictions in Mr Jones ability to see caused by the middle room being in relative darkness; or the contents of the report to the Health and Safety Executive referred to at paragraph 108 above. On the first point, having viewed the photographs, I consider it perfectly possible that the Claimant could have struck his head whilst walking, given the vaulted nature of the doorways and Mr Jones’ evidence as to a slight incline into the kitchen. On the second point, whilst this may have caused some restriction invisibility, it seems to be unlikely to have had so great an effect as to prevent Mr Jones having a view that was clear enough to tell whether the Claimant was walking or running. On the third point, it is unclear where this account came from. It may well have been the Claimant himself who provided it, in which case it may have been subject to the same potential distortion as other accounts from the Claimant.

On any version of events, the Claimant’s purpose in going over to Mr Jones was to assist him. That is the account consistently given by the Claimant himself and is Mr Jones’ explanation for the Claimant’s actions at paragraphs 4 and 5 of his witness statement within the litigation. Whilst it is not the explanation given by Mr Jones in his first statement of 28 May 2015, there is no other obvious reason as to why the Claimant should suddenly have approached him, in particular when Mr Jones accepts that he was “struggling” with the kitchen cabinet that he was moving. I therefore accept that the Claimant’s purpose in approaching Mr Jones was to provide assistance in circumstances where he considered that without such assistance Mr Jones might suffer injury.

The Claimant states in his witness statement that he remembers the impact and that his next memory is of “being upstairs on the ground floor sat in the window seat of the doorway on the ground floor. I remember that Craig was there. My next memory is of ringing Sharon Lloyd.”

The Claimant’s evidence is that he suffered a wound to the forehead after this accident. At paragraph 38 of his first witness statement, he refers to a memory that his head was bleeding after the accident and wiping his forehead “with a bandage with a patch on it from the first aid kit.”. Mr Jones accepted that he sustained a cut to the right side of the forehead (albeit that his acceptance was arguably somewhat equivocal). Mrs Long stated that he texted her a picture of his head (which supposes that there was something to be seen). Whilst there is no reference to a

Following the accident, Mr Jones’ account is of the Claimant behaving in a relatively normal fashion, which the Defendant suggests, is inconsistent with even mTBI.

While the appearance of the Claimant being in a lot of pain and the use of the blue paper towels suggested that the Claimant had suffered some injury, the Defendant makes the following points:

In contrast, the Claimant’s account is of immediate abnormalities:

It is the Claimant’s case that he may have lost consciousness and that he probably did suffer post traumatic amnesia. It appears to me unlikely that he lost consciousness. Had he done so, Mr Jones would have been aware of it. It would have been a striking event and one that did not readily fade from the memory. Further, it is very unlikely, given my assessment of Mr Jones above, that he would have failed to recount this obviously important piece of information.

Further, I accept that Mr Jones is likely to be right about:

In each case, the clear and consistent recollection of Mr Jones, in so far as inconsistent with that of the Claimant, is to be preferred to the latter’s imperfect recollection. The Claimant’s apparent desire to complete his job of handing over the building is consistent with the description of his personality at various points in the evidence as somewhat perfectionist. Further, in crossexamination, the Claimant recalled some of the detail of the walkaround. It must however be noted that the evidence of Mr Jones does not suggest that there were no immediate symptoms following the accident. Both the use of paper towels and the appearance of pain are suggestive that, whether the Claimant was walking or running, this was an impact with some degree of force.

As to whether the Claimant suffered post traumatic amnesia, I find the inferences to be drawn from the evidence of Mr Jones less clear. For reasons identified below, it is arguable that amnesia may be missed in particular by the non-expert observer whereas the evidence of the medics who saw him in the immediate post accident period and who identified amnesia may be powerful. That is not to say that Mr Jones’ evidence on the point is of no significance. However, it falls to be considered as part of the wider picture which is dealt with as part of Issue 3 below.

The manner in which the Claimant dealt with Mr Jones evidence of his saying that he intended to go to the gym (which evidence I accept, as indicated above) is of some significance. The Claimant has been aware of Mr Jones making this assertion since, at the very latest, the service of witness statements within these proceedings (September 2019). It would have been the easiest thing in the world for him to have given evidence that, whilst intended to go to the gym, in fact decided not to. Whilst such evidence might have been somewhat inconsistent with the islands of memory referred to in his first witness statement, he has given evidence of other matters which suggest that the memories set out in the first statement are not complete. The fact that he has not sought to deal with the issue of gym attendance by purporting to recall and intention to go followed by a decision not to (which would have been almost impossible for the Defendant to disprove) is a pointer in the direction that he is not a dishonest witness.

I turn to the evidence as to what happened after the Claimant returned to his parents’ home. The Claimant’s recollection as recounted in the witness statements is hazy. He recalls being at his

In cross-examination, the Claimant gave a little more detail about what happened between the accident and his second visit to hospital on 30^th March. It is not entirely clear, either from his oral evidence at the time all from the transcript, to what extent his account was based upon his independent recollection and to what extent it was drawn from what he has read all been told. Again, his evidence shows a tendency to rationalise what was happening to him, an example being his statement in respect of the abnormal feelings he developed on the night following the accident, “During the night, that night, was when I realised that things were not right. Prior to that, you know, I mean I banged my head so I am in shock, you know, there is adrenaline going on, there are all kinds of things occurring which are suppressing exactly what is wrong with me at the time and it is overnight that I realise things are not right, not before then and just carried on.”

Mr Long volunteered three further details of note:

Rev Long said the Claimant returned at “around teatime” (which, might suggest that he did not go to the gym, because it was questionable whether he had sufficient time to do so, though this particular nuance of the evidence was not explored further), stating that he had been involved in an accident, eating a meal and going to bed. The Claimant said, in response to a question from his parents, that he did not know if he had lost consciousness in the accident. He did not mention double vision or being sick. Within his witness statement, Rev Long described the

On the following morning, the Claimant complained of having woken during the night with a

“full body tingling sensation” which caused him to be distressed – in cross-examination Rev Long said, “he was frightened at what was happening to him.” On the following day, when Rev Long attended the doctor then the hospital with his son, he described the Claimant as seeming to be all right at times but at other times to be unable to answer questions and to be confused. Having returned from hospital on 24 March, Rev Long stated in cross-examination (contrary to his witness statement) that his son spent another night with them. There was nothing particularly strange about his presentation, although Rev Long confirmed what others have said in evidence about Claimant tending to keep things to himself.

Mrs Long’s evidence within her witness statement was that, when her husband returned to

In cross examination, Mrs Long was asked whether the Claimant said that he had been knocked out. She said that she had not asked him this, because she did not have the opportunity, he being asleep in bed the whole time. Equally they had not discussed him having visual problems or being nauseous. She did however say that, on his return to his parents’ house, he had texted to said that he had been sick on the journey: “He got on the A50 and said he had been sick, and then he asked me had anybody else been sick and I said no, nobody had been sick, kids are all right, I am all right.” It is notable that this incident is not referred to in the statements of either witness, yet Mrs Long gave evidence of a conversation having taking place in similar terms to those of her husband. This bears similarity to the evidence relating to the xiphisternum and to the discussion between Mr and Mrs Long about the conversation that Mr Long is said to have had with Mr Walsh. Whilst it is again possible that the similarity of their accounts flows from them both correctly remembering the incident, given the length of time since the matters complained of, it is more probable that Mrs Long is taking her account from that of her husband. This again causes me concern about her reliability as a witness.

When the Claimant returned to his parents’ house on the following Sunday evening (29 March),

There is very little material from the lay witnesses as to the Claimant’s condition after discharge from the CoC on 2 April 2015, not least because his witness statements concentrate on its condition at the time that they were signed, not the progress of his symptoms since the accident.

I set out below relevant entries from the medical records covering the period between the accident and the Claimant’s redundancy taking effect. I have also included reference to the redundancy process.

The importance of the medical evidence in the immediate post accident period lies in identifying whether the Claimant probably suffered a brain injury. If he did, the severity of that injury, whether in terms of severity of immediate symptomatology or by reference to the Mayo Classification dealt with below, is of lesser importance for reasons dealt with later.

The starting point for both parties in considering whether the evidence supports a diagnosis of brain injury is the Mayo Traumatic Brain Injury Classification system. The relevant part of this system is:

“A.

Classify as Moderate-Severe (Definite) TBI if one or more of the following criteria apply (Footnote: ¹⁶): …

B.

If none of Criteria A apply, classify as Mild (Probable) TBI if one or more of the following criteria apply:

If none of Criteria A or B apply, classify as Symptomatic (Possible) TBI if one or more of the following symptoms are present:

Three points should immediately be noted:

Post traumatic amnesia is defined as the inability to lay down clear and continuous memory. Absent a clear period of amnesia, such as that consequent upon loss of consciousness, the assessment of PTA requires one to look at the person’s account of what they remember. It does not necessarily, on Dr Nichols’ evidence, involve a period of confusion. He described this as “a common misconception…you can actually be lucid and alert and appear normal and yet still be within a state of post-traumatic amnesia…” He stated that PTA can be missed by healthcare professionals, in this respect, relying on the paper by Meares et al, Identifying Posttraumatic Amnesia in Individuals with a Glasgow Coma Scale of 15 after Mild Traumatic Brain Injury (2015).

Dr Heaney on the other hand said that PTA is characterised by “anterograde amnesia, disorientation and agitation.” Mr Grant on behalf of the Claimant took Dr Heaney in cross examination to literature on the potential inadequacies of basing assessment of cognitive impairment in mTBI cases on Glasgow Coma Scale, namely Shores et al (2008) and Meares et al (2015). He agreed that an assessment of brain injury could not be based on GCS alone. He agreed with the proposition that PTA “can appear quite separately from disorientation and confusion in milder brain injury cases.” However he added the caution that “it is pretty unusual not to be associated with agitation, repetition, those types of symptoms.”

The contemporaneous evidence as to post traumatic amnesia is, in summary as follows:

As to the reporting clinicians, they formed differing viewed as to whether there was evidence of post traumatic amnesia:

I conclude from my summary of the evidence relating to post traumatic amnesia, including the

The was some debate as to the degree of force required to cause mTBI. I have recorded my finding that the impact involved “some degree of force.” I am not in a position to be more precise as to the force involved. Dr Nichols formulated the argument that it was the unguarded nature of the blow, the fact that it was unexpected and therefore no precaution was taken against it, that was the important part of the mechanism. Whilst I accept that, if one sees a blow coming and takes evasive action, impending impact may be avoided altogether or be of lesser severity. However, the fact that it was unguarded does not, it seems to me, in and of itself tell one how great the impact was. One could have an unguarded blow which was of minor severity simply because of the nature of the incident; equally one might not be able to avoid a blow that one sees coming, such that the force was considerable even though anticipated. In each case, the question must be about the degree of force. Dr Nichols said that it was not the punch that you see coming that knocks you out; I suspect that this depends on how hard the punch is thrown!

In his second report of January 2020, Dr Bird described the injury as being “very mild”, stating that it “hardly ‘qualifies’ as a head injury at all. ” At paragraph 4.2.2 of his report, Dr Heaney states, “depending on how fast Mr Long was moving, the mechanisms described is unlikely to cause significant neurological injury. ” Dr Heaney denied in cross examination that his opinion was influenced by what Dr Bird had had to say. More importantly, he accepted that he had experience of people with “pretty innocuous head injuries…sustained in sport who have had enduring symptoms going on for many years. ”

I can see no basis to distinguish head injuries sustained during the course of sporting activities from those sustained in other circumstances, and I take it that Dr Heaney was simply giving examples of his experience of sports injuries rather than seeking to distinguish the circumstance in which the injury occurred. It follows from this that evidence of the severity of the impact is a relatively poor indicator of the likelihood of a person suffering mTBI – of course the position might be far different if one were concerned with the more serious types of TBI, but that is not the subject matter of this case on any version of events.

I have borne in mind that the Claimant’s account of memory loss may in fact be mistaken or even deliberately wrong. In particular, three points are striking:

On the second of these points, a further matter arises. The Mayo classification, as noted above, speaks of PTA that is “momentary to less than 24h.” One might think from this that a period of a few minuets of amnesia after the accident would be clearly sufficient to meet this criterion. However, Dr Nichols was questioned on the basis that momentary PTA is not in fact consistent with mTBI. The logic of the point put by Mr Dignum QC to him was thus:

In cross examination, Dr Nichols rejected that argument, referring to the wording of Malec et al which expressly refers to “momentary” PTA. Further, her referred to papers by Meares et al, “Identifying Posttraumatic Amnesia in Individuals with a Glasgow Coma Scale of 15 after Mild

In my judgment, so long as genuine PTA is found to have arisen, neither the length of the PTA nor the lack of other symptoms excludes the possibility of a diagnosis of mTBI. I accept that the lack of other symptoms may tend to suggest that the apparent amnesia is not in fact PTA at all. But that is conceptually different from saying that PTA of short duration is in fact not capable of giving rise to mTBI. The Mayo Classification makes clear that the accepted thinking (which was not disputed by any of the Defendant’s experts) is that even momentary PTA, so long as genuine, is a sufficient symptom to justify the diagnosis of mTBI.

Weighing these matters, I am satisfied on the evidence before the Court that the Claimant did suffer post traumatic amnesia for at least a short period, probably only a few minutes, after the accident. Even if the Claimant is otherwise unreliable or even a dishonest witness on certain issues, I find his early account of amnesia to medics on his first hospital admission to be compelling and his repeated account of his first recollection after the accident, that he was seated on the ground floor, to be powerfully consistent with that.

It follows that I am satisfied that there is evidence from which a diagnosis of mTBI in accordance with the Mayo Classification could properly be made. Nevertheless it is important to go on to consider the other symptoms of which the Claimant complained, both to see whether they support they contention that he did in fact suffer a brain injury and also to assess his reliability as a witness.

I turn to the other symptoms relevant to criteria B to see what evidence there is as to their presence. Within his first witness statement, the Claimant deals with the continuing problems in May 2018 (Footnote: ¹⁷) under the following 28 headings:

He also deals, under the heading “vestibular/epileptic seizures” with a variety of symptoms, including issues relating to mood.

The neurologists agree that many, if not all, of these chronic symptoms probably are not related to mTBI, though Dr Nichols considers that some may be a consequence of subtle ongoing brain injury. Both the neuropsychologists and the neuropsychiatrists agree that the Claimant’s perceived symptoms, in so far as genuinely suffered are, as the neuropsychologists put it in their joint statement, “best explained by psychiatric and psychological dysfunction.” Accordingly, the ongoing symptoms are of no assistance in determining whether the Claimant suffered brain injury at the time of the accident. However, having regard to the Mayo Classification immediate complaints of the following are potentially relevant and require further consideration:

The Claimant has referred to visual disturbance on several occasions in the period immediately after the accident. On attending CoC on 24 March 2015, the Claimant is recorded as reporting “visual changes” at one time, “visual disturbance” at another. This is thereafter variously described as “non-specific visual changes – not decreased vision, not diplopia, sees multiples of things” (CoC Emergency Department of 30 March 2015), “bilateral; monocular diplopia”

In cross-examination, it was put to Mr Long that he suffered two different conditions, the diplopia which led to suspension of his driving licence and a separate vaguer issue of seeing multiple images. He did not accept this to be the case.

In terms of confusion and mental state changes, the initial CoC note described the Claimant as “alert, awake, orientated.” However, on his second visit to the hospital, he is recorded as describing himself as having felt “muddled and confused.” On examination, he was stated to look anxious and to be “easily distracted/forgetful.” On 31 March 2015, Dr Fletcher noted

“mentally vague, very slow…reduced concentration, muddled.” and confusion is mentioned in

the discharge summary from CoC on 31 March 2015. Memory problems are mentioned in the GP note of 17 April 2015, but in the next GP entry, after his attendance at work on 23 April reference is made to concentration as well as memory problems. Memory problems are again mentioned in the GP note of 5 May 2015. Finally in this period, the Claimant reported to Dr Rittman on 13 May 2015 a wide range of rather more florid problems of mental state changes.

Neither daze nor dizziness are separately mentioned in the medical records, save by way of exclusion in the CoC emergency department record of 30 March 2015. No focal neurological symptoms are mentioned and again are excluded, this time in the first CoC attendance.

Headaches are mentioned repeatedly in the records, on 24, 30 and 31 March, 1, 2, 17, 23 April, 5 May (said to be improving) and finally in Dr Rittman’s letter from 13 May.

Nausea is mentioned “+++” in the CoC attendance on 24 March, as well as in the CoC admission on 30 March. It was of course also described by the Claimant himself and Rev Long. However, the Defendant has correctly pointed to the report from Dr McGlashen dated 17 January 2016, referred to below, in which it is said of the first attendance at CoC that “vomiting was not a feature” though vomiting is mentioned as a symptom of the second visit. I am satisfised that the Claimant’s account of being sick both overnight after the accident and on the night of 29 March, both incidents being corroborated by medical records and the second by Rev

As to the Claimant’s other complaints in this period, it is clear that the description became distinctly more florid on the second attendance at CoC than it had been on the first. The symptoms at first attendance appear relatively minor, limited to vomiting, visual changes and headache. At the time of the second, the Claimant was stating that his headaches had worsened and was also complaining of neck pain, bruising to the right ear, numbness to the face, hearing loss to the right side “with noise” and cognitive impairment. The medics considered more serious causes than mTBI such as a carotid dissection or encephalitis, both potentially fatal conditions. The symptoms are arguably more florid again by the time of the consultation with

During examinations for the purpose of the litigation, the Claimant complained of other symptoms in the immediate post accident period (although it is not always clear from the accounts of when he said the symptoms came on) including reduction in the senses of smell and taste, dizziness and balance problems, photophobia and tinnitus (Footnote: ¹⁸). However, his accounts are not entirely consistent. For example, Dr Bourke records him as denying suffering dizziness immediately post-accident.

In the same period, changes can be seen in the Claimant’s account of matters which may suggest he is an unreliable witness. for example the asserted length of loss of consciousness, which is said to be 1 minute in the discharge summary for the first CoC attendance, but 5 (or 15, depending on how one reads the note) minutes in the clinical note at 11.30 on 1 April during the second attendance.

On the Claimant’s case, the deterioration between the two CoC attendances may be explained by the onset of migraine. Both Dr Nichols and Dr Surenthiran referred in their reports to the opinion that the headaches of which the Claimant complained were migrainous in nature. Each of them developed the theory of migraine as the cause of worsening symptoms in the week following the accident during their oral evidence.

Dr Nichols stated in cross examination that he considered the Claimant to have had a post traumatic migrainous episode prior to the CoC admission on 30 March 2015 which was the cause of significant vomiting and increasing headache. Absent a pre-existing history of migraine, he considered head injury to be a more probable cause of migraine than stress caused for example by the Claimant being aware of a risk of impending redundancy.

Whilst Dr Surenthiran accepted in cross examination that stress could be a cause of migraine, he did not consider it the probable cause here. Were stress to have been the cause, one would expect some history of migraine to show a vulnerability to developing it, as well as very considerable stress, possible with some other coincidental event such as illness. He did not consider this to be the picture here. He did not consider the fact that the headaches only became migrainous in nature in the week after the accident to exclude head injury as a cause, since such

Dr Bird agreed that the alleged symptoms of vomiting, visual changes and headache were consistent with a “mild bump on the head.” However, he did not accept that this was due to the kind of neurometabolic cascade described in some of the literature, saying that one would expect such symptoms to come on straight away if caused by the head injury and associated brain damage and that such a cascade of symptoms was in any event associated with a more serious injury.

Dr Bird did not accept the suggestion that the Claimant had suffered post traumatic migraines, stating that the force of the blow was simply not sufficient to lead to that consequence, and noting he had not been recorded as suffering migrainous headaches on attendance at CoC on either occasion. It was particularly striking that Dr Fletcher had not mentioned this. However, he did not exclude the possibility that the Claimant was suffering migraine, merely doubting it.

Dr Bird however considered the “strange tingling sensation” that the Claimant described on the night of the accident to be indicative of an alternative cause for at least some of his symptoms. During the course of his evidence in chief, he stated, for the first time, that he considered this symptom to be “undoubtedly” a panic attack. He accepted in cross examination that the Claimant had described the tingling sensation to him during his examination for the purpose of his report, yet he had not previously mentioned the theory that the Claimant suffered a panic attack. His explanation for this was that the accounts of the Claimant and his father in oral evidence had caused Dr Bird to think about the issue in more depth.

The account by Dr Bird of the Claimant suffering a panic attack or something akin to that is a superficially plausible explanation of his condition overnight. I am not persuaded that in fact such a finding would make any difference to other conclusions, but it would reasonably convincingly explain a somewhat odd symptom. If the theory is correct, it does cause one to wonder what caused the panic attack, unless it was something to do with the Claimant’s employment (which is dealt with below), it might suggest that the Claimant was panicking about the head injury he had suffered; if this is so it does suggest that the injury was of some significance to him and would contradict the suggestion that this was a trivial incident. However, I am not persuaded that this theory of Dr Bird was sufficiently well thought through to persuade me that it is probably the correct explanation for the Claimant’s condition overnight.

In respect of the possible explanation for a deterioration in symptoms thereafter as a result of the development of migrainous headaches, it is unfortunate that this theory was not put within the medical reports of Dr Nichols and Dr Surenthiran, since again this suggests that it was not well thought through and further the failure to give advance notice to the Defendant has prevented its experts from properly exploring the issue. Whilst I reject the suggestion of any

“pincer movement” by the Claimant’s experts, it may well be the case that they have influenced each other in favour of this theory. But the reference to migrainous headaches was made in the original reports and the theory that they were a cause of deterioration was accepted as at least a possible explanation of vomiting by Dr Bird. Given the apparently different nature of the headaches on the Claimant’s return to hospital on 30 April, I accept the development of migrainous headaches as being at least possibly an explanation of the Claimant developing new symptoms.

As to the suggestion by Dr Bird that the Claimant’s deterioration in symptoms was caused by stress, quite possibly relating to his work, it is necessary to consider the Defendant’s argument that the circumstances of the Claimant’s redundancy are a more probable explanation for some or all of the Claimant’s symptoms and/or give a motive for the Claimant to have exaggerated his symptoms, given that, shortly before to the accident, the Claimant’s “inadvertent discovery” of the risk of redundancy had occurred. I turn therefore to considering the significance of the redundancy to the Claimant’s complaints.

The Claimant’s account of the circumstances of his redundancy closest in time to the accident, is contained in the lengthy document which forms part of the appeal documentation in relation to his redundancy, what I have called the “May 2015 Document”. It is the Claimant’s case that the May 2015 Document was drafted together with the assistance of employment lawyers. It sets out essentially four grounds of appeal:

I have set out above a passage from the May 2015 Document in which the Claimant spoke of his response to the discovery of the possibility of redundancy. The document also deals with the

It is a striking feature of the May 2015 Document that, in parts at least, it is written in highly emotive terms. The passage under the sub hearing “Inadvertent Discovery 10th March” is perhaps the clearest example of this. Other sections of it are far more measured.

Mr Long was cross examined on the basis that this document appears to indicate that, as at the time of the inadvertent discovery on 10 March 2015, in other words less than two weeks before his accident, he had discovered that he was to be made redundant and that this was an obvious cause of stress for him. Indeed, he had described the discovery as “incredibly humiliating.” He responded that “the redundancy process was not a done deal at that point, my redundancy was dependent upon somebody who had not yet been employed being employed and then making a decision on the future of my role. So I was not stressed about being made redundant because I

The Defendant contends that the Claimant’s explanation of this is implausible and indeed dishonest. In essence, three points are made.

Of course, if the Claimant deliberately failed to refer to the threat of redundancy when discussing the relevant history with medics, most obviously Dr Bourke, in the circumstances set out above, that deliberate failure may have been motivated by the belief that the case that he was advancing, that the accident caused his symptoms, was not a genuine one. In other words, the resolution of issue 6 in the Defendant’s favour might support the resolution of this issue in its favour. On the other hand, if there is a favourable finding to the Claimant on this issue in that the Claimant’s redundancy was not in fact relevant to his subsequent symptoms, this may assist

What is relevant for the current issue is whether the Claimant’s redundancy rather than the accident was the cause of some or all of the symptoms which he may genuinely have suffered. The Defendant contends that the Claimant has believed from the time of the discovery in March 2015 referred to in the May 2015 Document that he was at significant risk of redundancy in 2015. Dr Bird’s evidence, in his desktop report of April 2017, that such knowledge was likely to be a severe stressor. It is more likely than not that that the Claimant deliberately suppressed reference to the redundancy because he in fact believed that redundancy was unrelated to the accident but that, because it was in his words an “incredibly humiliating event”, it was a probable cause of ill health in any event.

The Claimant counters that the Defendant is misreading the May 2015 Document. At the time of the accident, redundancy was no more than a possibility. In particular, given what Mr Walsh had said about the role not being “immediately redundant” and the decision being dependent upon the appointment of a new group Head of IT (which in the event took some months), the Claimant did not consider himself at imminent risk of being made redundant at the time of the accident. It was only when he was in fact made redundant, after the accident but before a new group Head of IT was appointed that the extreme emotions referred to in the May 2015, that the extreme emotions referred to in the May 2015 Document were provoked.

Accordingly, it is necessary to consider the Claimant’s reaction to his finding about the risk of redundancy and in particular whether the May 2015 Document reflects his state of mind at or around the time of the accident. There are several significant pieces of evidence, independent of what the Claimant has said during this litigation. that may suggest that this is not so.

First, the GP notes of 9 and 17 April 2015 both record him as being apparently keen to return to work. This does not lie easily with the emotive terms of parts of the May 2015 Document and suggests that at the time of those GP attendances he did not harbour negative feelings towards his employer.

Second, when Rev Long was asked whether he had been made aware of the threat of redundancy to his son in March 2015, he said that he had not but then volunteered that, when the Claimant had returned to the parental home with a view to returning to work on 20 April, the Claimant had arrived in a new car and was excited about going back to work. Rev Long presumed from this that his son was not anticipating being made redundant, since it would have

Third, it is notable to see how the Claimant is recorded as expressing himself in the meeting on 20 April 2015. Of course this meeting shortly preceded him being, as he put it in cross examination, thrown out of the building. The note of that meeting does not suggest any of the emotion of the May 2015 Document, nor does it even refer to the previous “inadvertent discovery.” If Mr Long’s state of mind on the issue at that point was anything like was it set out in the May 2015 Document, it is difficult to understand why he did not apparently express any of that emotion or indeed anger in the meeting when redundancy is being formally addressed. If he expressed any emotion or anger, one would expect at least some reference to it in the note of the meeting.

Fourth, as Mr Grant pointed out in closing submissions, if the Defendant had any evidence to support the contention that the Claimant was showing sign of psychological illness prior to the accident, one would expect it to have adduced evidence to this effect. For example, it would be surprising if the kind of extreme reaction described in the May 2015 Document did not generate email traffic or other internal communications at the time of Mr Long’s “inadvertent discovery” if the response was so extreme at that time. The Defendant has had the opportunity to produce such evidence, yet none is forthcoming.

Fifth, as I have commented already, the May 2015 Document is itself somewhat inconsistent in tone. The document certainly states that the Claimant was upset on making the discovery on 10 March 2015, and the passage, “Accidentally finding that your job is being replaced, because someone doesn’t think you are up to it, is incredibly humiliating” is suggestive of an extremely adverse reaction to the discovery at that time. However, the tone of the document is that what Mr Walsh had to say to the Claimant was reassuring. This apparent inconsistency might be explained by the Claimant’s case that he believed that he potentially had a future with the Defendant and that the question of redundancy was to be resolved some time in the future, when person was recruited to the new role. On this explanation, it was only when Mr Walsh essentially reneged on what he had to say in March 2015 by making the Claimant’s job redundant forthwith in May 2015 that the extreme reaction occurred. Of course the May 2015 Document by definition post-dated those events.

I find these five points taken together to be powerful evidence in support of the Claimant’s case that the May 2015 document is being misinterpreted and that his reaction to the redundancy risk only arose in May 2015. On the balance of probabilities, I accept that case. This being so, the redundancy risk was no significant stressor at the time of the accident and does not adequately explain the significant symptoms of which the Claimant complained in April 2015.

I return then to considering whether the Claimant suffered other symptoms falling with the Mayo Classification and if so whether they were caused by the accident.

Taking my finding of PTA with the other symptoms referred to above, I am satisfied that the Claimant did in fact suffer mTBI in the accident, causing vomiting and visual disturbance apparent in the immediate post-traumatic admission, as well as the developing pattern of symptoms that had become apparent by the time of the second CoC admission on 30 April 2015, which on the balance of probabilities were caused by the development of migrainous headaches in the days following the accident. As to the developing symptoms thereafter, it becomes increasingly difficult to unpick the immediate physical consequences of the head injury from other causes. Further, in so far as other symptoms that were referred to by the reporting experts are concerned, I am not persuaded that the Claimant suffered symptoms that were not contemporaneously reported in this first period. Given his admitted willingness to report what was wrong, coupled with the care that he took in reporting matters to Dr Rittman in particular, it appears to me that he is probably wrong to say that he suffered loss of the senses of smell and taste and/or photophobia in this early period, these not being recorded in the contemporaneous notes. It is more probable that the Claimant is, for whatever reason (as to which I shall consider further below) is misstating the symptoms that he suffered in this early period.

The position with dizziness and balance problems is less clear. In the list of symptoms given to

The neuropsychiatrists agreed in their first joint statement that the Claimant began to develop a depressive disorder in May 2015. They note, in particular, the irritability referred to by Dr Rittman.

A specific issue arises as to the neuro-imaging carried out. As can be seen from the chronology above, the Claimant underwent a CT scan on 24 March 2015 which was reported as showing “no intra cranial haemorrhage, no skull fractures.” A scan on 30 March 2015 was reported as showing “no intracranial haemorrhage. Apparent thin isodensity in the extra axial space overlying the right frontal lobe is impression of cortical vessel rather than extra axial collection.” Dr Fletcher queried whether the CT scan show a right occipital contusion or merely was the torcula where the sinuses converge. A later MRI scan, performed on 29 May 2015 was normal. Dr Nichols considered that, with mTBI, imaging lacked sensitivity and therefore the normal imaging did not exclude widespread brain injury at a microscopic level. Indeed, in cross examination he added that even the more sensitive susceptibility weighted imaging (which was not undertaken here) might often be negative when such damage was present. Dr Heaney on the other hand considered the neuro-imaging to be reassuring and to provide, as he put it in the joint statement, “strong weight to the view that not significant or enduring brain injury occurred.” In cross examination, Dr Heaney stated the very injured brain with a lot of changes visible on MR scanning would likely involve the person having considerable neurocognitive deficit, whereas as a normal scan would typically be associated with someone who would be described as “generally well.” He accepted the proposition that it is possible to have a normal MRI scan yet in a person with clear neuropsychological evidence of brain injury, adding that the use of susceptibility weighted scanning would increase the prospect of picking up any signs of brain

However, the Claimant variously reported that he had had a “small bleed” (GP note of 9 April 2015) and the more sinister “internal swelling and bleeding intracranially of brain” (accident report of 20 April 2015). For reasons dealt with in issue 6 below, the Defendant contends that this is an example of the Claimant exaggerating his symptoms.

The chronology picks up from the 18 May 2015 and continue to 27 June 2019. My understanding is that the records stop at that date not because of there being no further attendances, but simply because these are the most up to date records available.

The witness statements of the claimant described a complex series of issues since the accident as noted at paragraph 149 above. The medical records, summarised above, show multiple references to these various complaints, including dizziness and balance problems (first mentioned on 27 August 2015) and photophobia (first mentioned on 17 January 2016) noted above not to have been a feature of the medical records for the early period after the accident. The only symptom not to be mentioned at some point within the medical records before the court is the loss of sense of taste and smell.

It is notable that the Claimant’s recent account, to all reporting medical experts, is of an improvement in his condition. This is further supported by the medical records above, in so far as there is a clear trend in that direction since the depths of the condition in 2018, albeit that the medical records stop abruptly in 2019 without charting the course of his symptoms thereafter.

The witness evidence from members of his family refers to significant changes in his condition and behaviour following the accident. Whilst I am cautious about accepting the detail of witness statements from members of the family, in circumstances where it is likely that their accounts are influenced by each other and by the Claimant himself, the consistency of complaints since May 2015 supports the contention that, whatever their cause, the Claimant has suffered a constellation of symptoms that have significantly affected his life. Whilst I do not disregard the possibility that some of the symptoms may have been exaggerated, I am satisfied on the balance of probabilities that the Claimant has suffered (or at least perceived that he has suffered) significant symptoms. The contemporaneous medical records provide the most reliable account of the symptoms, although in point of fact the Claimant’s own account is not significantly different than what is recited in the records. As I have noted above, the loss of senses of taste and smell is the only of the Claimant’s physical complaints that is not referred to in the records. It is easy to understand why that relatively subtle matter would be lost in the fog of his describing more serious symptoms. Having read the Claimant’s statements and heard his

In considering the cause of those symptoms, it is a striking feature of the medical records that, during 2015, the Claimant’s condition deteriorated rapidly, leading to suicidal ideation and inpatient treatment. The development of his symptoms from May 2015 into 2016 is, according to the neuropsychiatrists in their first joint report, associated with increasing evidence of depressive disorder. Antidepressant medication was prescribed in July 2015, with the dose medication being increased in August. By September, he was suicidal with hospital admission in October 2015. He symptoms came under control but low mood and intermittent suicidal ideation persisted after his discharge. The neuropsychiatrists have indicated that his mood disorder has remained “symptomatic or recurrent sense”. These depressive problems, coupled with his premorbid personality type and the persistence of symptoms following head injury are agreed by the neuropsychiatrists to be the explanation of the Claimant’s behavioural changes, described as “a general state of avolition and anhedonia, a motivation, irritability and at times antagonistic interactions with others.” Dr Bird would add to this explanation his diagnosis of an underlying Somatic System Disorder.

Dr Bourke concludes that the Claimant continuing symptoms represent a Function Neurological Symptoms Disorder (FNSD). This diagnosis is based upon a pre-traumatic vulnerability to functional symptoms, as evident in the history of fibromyalgia, the onset of functional myoclonus and evidence of functional ophthalmic symptoms. He has also developed SSD, but only since the accident. He considers that these particular neurological symptoms would not have developed but for the head injury, although the Claimant would have been vulnerable to developing symptoms regardless of the accident given his history of fibromyalgia.

Dr Bird considers the Claimant’s presentation to be of an underlying SSD, which he considers to have been present since around 1990 and which has waxed and waned in time. He does not consider the evidence of myoclonus to be convincing (there is one mention in the medical records on 13 December 2016 and no other record of it on examination, the main source being the Claimant’s own statement).

The difference between the opinions of Dr Bourke and Dr Bird is a relatively subtle one, turning on whether a proper diagnosis of the Claimant’s pre-accident condition points to the conclusion that his post-accident symptoms, so far as genuine, would have been suffered in any event. It is striking that, whilst they obviously do not seek to usurp the court’s role as the fact finder in respect of the genuineness of symptoms, neither finds an explanation based on the fact that the Claimant is deliberately feigning symptoms to be more persuasive than the diagnoses they proffer.

For the reasons referred to above, I do not accept Dr Bird’s opinion that the Claimant suffered SSD which pre-dated this accident. It follows that the more persuasive diagnoses of the cause of the Claimant’s continuing symptoms are those given by Dr Bourke, namely FNSD coupled with SSD that has arisen following and on account of the accident,

In their joint statement, Dr Pierce and Dr McCulloch note that the Claimant’s reported symptoms are not typical of the sequalae of mTBI and, from the neuropsychological point of view, they are unable to explain those symptoms as having an organic basis. Further, they agree that, on neuropsychological assessment, the Claimant has failed performance validity testing. They suggest that the reason for this should be considered in the context of the evidence generally available and that the court should in particular bear in mind the possible contribution of psychiatric sequelae, the fabrication of symptoms in an attempt to deceive, and the exaggeration of subjectively experienced symptoms with a view to persuading people of the validity of those symptoms.

On the facts of this case, they disagree as to the probable cause of the underperformance. Dr Pierce attributes it to psychiatric dysfunction which is perpetuating his experience of cognitive impairment – he believes he suffered a brain injury and his depression contributes to factors such as reduced concentration, memory lapses, slow thinking speed and indecisiveness, which in turn play a role in underperformance in cognitive testing. These problems are exacerbated by his tendency towards self-criticism. She acknowledges that this does not exclude the possibility of some exaggeration on the Claimant’s part.

Dr McCulloch on the other hand considers that the Claimant’s presentation is suggestive of conscious mental processes affecting his performance. For example, his slow performance in reading simple words as to colour is not consistent with an unconscious mental process – it is not difficult to read words and therefore one has deliberately to slow down one’s reading to perform so poorly. Further, Dr McCulloch rejects the suggestion that depression can explain the Claimant’s poor performance given the material that shows that this would not be expected. Yet further, her report points to inconsistency in cognition testing which is suggestive of conscious exaggeration. Dr McCulloch does however accept that it is for the court to determine the cause of the deliberate exaggeration or misstating symptoms. She developed this point in cross examination, stating that the Claimant’s conduct on testing, if delivered, might be a consequence of an underlying somatic disorder (Footnote: ²¹), suggesting that it might be the case that overstatement was because “he wants …people to take his reports of cognitive problems seriously…”

Given that neither Dr Bird nor Dr Bourke favour an interpretation that that the Claimant’s purported symptoms are deliberately feigned rather than being an aspect of a somatic disorder and Dr Pierce’s explanation for why she considers that the Claimant’s failures on performance validity testing have a psychiatric explanation, it seems to me more likely than not that the features of the Claimant’s presentation suggestive to Dr McCulloch of exaggeration are more naturally explained by a tendency towards over emphasising symptoms that he does perceive than that they represent a conscious attempt to feign symptoms that he does not perceive.

In closing submissions, Mr Grant invited the court “to find that the neuropsychological evidence provides… little more than a backdrop to substantiate the FNSD diagnosis made by Dr Bourke and Dr Heaney…” That is an apposite way to put the same point – the Claimant’s tendency towards somatisation explains why it is that his account of symptoms differs from what one would expect in a condition that had an organic basis and further why his results on psychometric testing are not valid.

There are two discrete areas of the Claimant’s evidence, not relating to the symptoms as such, but rather to his underlying condition and the consequence of the accident, where the Defendant has alleged that the Claimant has deliberately misstated the position.

The first relates to what the Claimant had to say about the scan results in May 2015. As I have indicated under the heading of Issue 3 above, the scanning was reported in terms that excluded any serious brain damage. However, the Claimant reported that he had had a “small bleed” (GP note of 9 April 2015) and “internal swelling and bleeding intracranially of brain” (accident report of 20 April 2015). The Defendant identifies these as examples of the Claimant deliberately misstating his condition. As Mr Dignum QC put it in cross examination to Dr Pierce, “when he signs the document on 20 April, he knows he has not got a bleed and never has a bleed to his brain…”

The reason for the Claimant describing his injury in this way was explored at some length in evidence. The Claimant’s account in cross examination was that he was told they were

“investigating a bleed or bruising at the back of my bran … and that conversation went on for basically four days while I was in hospital and so that is where I got the impression … that there had been some kind of intracranial bleed or, I mean the internal swelling is taken given that I had a head injury but the bleeding intracranially came from conversations with particularly there was a specialist from Liverpool who came in to see me, ordered specific CT scans and he was the person that said this is what we are looking at.” It is common ground that Dr Fletcher, who carried out neurological review at CoC on 31 March 2015, had come from the Walton Centre in Liverpool and that the reference to a specialist from Liverpool is therefor likely to be a reference to him. As I have noted, Dr Fletcher did indeed query whether the CT scan showed a right occipital contusion, although was ultimately reassured that it did not. Mr Dignum QC contended that the medical records show that his reassurance took place on the day after the scan, 31 March 2015, not 4 days later. His basis for this submission is a nursing note at

18.38

on 31 March 2015 which state, “Pt seen by Dr Fletcher CT reviewed by Walton informed that scan is normal.” The Defendant takes that note as an indication that, after Dr Fletcher saw the Claimant on 31 March and raised the issue of whether the scan showed a contusion. He obtained reassurance from the Walton Centre and later saw the Claimant again. Whilst clearly this is a possible sequence of events, one might have expected that Dr Fletcher would himself have made a note if he had seen the Claimant again. The nursing note is also consistent with the nursing staff having reviewed the information that the scan was reassuring. If that was so, there is no evidence as to when the Claimant was reassured. On the other hand, a note from Dr Chakrabarty on 2 April 2015 states that the Claimant could be discharged after a radiology meeting to discuss his scan – that suggests that the reassuring message was not even able to the doctors until towards the end of the Claimant’s admission.

During questioning from me, Dr Heaney accepted that, had Dr Fletcher raised with the Claimant the suggestion that the scan might be abnormal and had the Claimant pressed Dr Fletcher on what the potential abnormality was, Dr Fetcher may have explained in a way that mentioned the concept of “a bleed on the brain” or similar. I cannot be satisfied on this evidence that any misstatement of the scan results from the Claimant resulted from a deliberate attempt to misstate the severity of his injury.

The second matter is the Claimant’s accounts to Dr Pierce and Dr Heaney of his fibromyalgia. Dr Pierce recorded at paragraph 2.8 of her report of June 2018 that the fibromyalgia “had resolved and that he had not ‘flare ups’ of pain for years prior to the index accident.” Dr Heaney recorded at paragraph 3.1.7 of his report that the Claimant said to him “on direct questioning that in or around 2007 he had been diagnosed with fibromyalgia after experiencing joint pain and he had been treated in a pain management clinic. He told me that this condition did not cause any problems.” In each case, it seems that the Claimant gave an incorrect account of the fibromyalgia. For example, on 20 June 2014, the Claimant’s GP reported “has fibromyalgia and pain is worse again.”

That said, there are pointers against concluding that the Claimant was deliberately misstating this condition to Dr Heaney. The severity of the condition was undoubtedly fluctuant, and the evidence summarised at paragraph 80 above tends to suggest that his condition as being much better in the 2-3 years before the accident that it had been in the previous 5-6 years. In the last direct reference to fibromyalgia before the accident, a GP attendance on 4 September 2014, the condition is said to be stable.

More importantly, the Claimant told Dr Bourke (Footnote: ²²), Dr Bird (Footnote: ²³) and Dr McCulloch (Footnote: ²⁴) of the diagnosis of fibromyalgia, so if he was attempting to deceive doctors as to his medical history, his attempt was poorly executed. Given that the Claimant gave an account of his alleged fibromyalgia to other doctors (albeit that he disputed the account) it does not seem to me reasonable to conclude that his statement to Dr Heaney was an inaccurate one made with the deliberate attempt to deceive.

I have considered to what extent the Claimant’s account may involve deliberate exaggeration, not as a feature of a somatic condition, but rather simply over stating his symptoms so as to increase his damages. I have to accept the possibility that some exaggeration of this kind might have taken place. Some of the florid accounts given by the Claimant might be thought to be such. Any finding that the Claimant had misstated his case so as to increase his damages would be a serious allegation, to be determined on the balance of probabilities, but requiring compelling evidence. Three points lead me to the conclusion that I cannot be satisfied on the balance of probabilities that any particular account of his symptoms was deliberately exaggerated in this sense, rather than as a manifestation of an underlying somatic disorder:

I am fortified in this conclusion by the fact that, whilst the Defendant’s case has not conducted its case on exaggeration by suggesting that the Claimant has repeatedly exaggerated his symptoms. Whilst the Defendant does contend that there have been some specific cases of exaggeration, which are considered below in issue 5, it has focused on defending this claim on the causation of the Claimant’s symptoms and the significance of his redundancy, rather than saying that large swathes of his complaints are invented.

I have set out under issue 3 above my reasons and conclusion that the tone of the document does not accurately reflect the Claimant’s thinking as of 10 March 2015. I accept, for reasons given earlier, that the Claimant did not see his redundancy as an inevitability at the time of the accident.

It does not automatically follow from the finding on Issue 3 that the Claimant has not been guilty of dishonesty of this issue. It would be dishonest by the standards of ordinary people to give a deliberately misleading account of the circumstances of the redundancy even if the motivation in doing that were to bolster the Claimant’s true belief that the redundancy was not inevitable and/or that the Claimant’s ill health was not related to the redundancy.

But there are several puzzling features relating to the Claimant’s redundancy. Whilst in part these flow from an apparent inconsistency in his account of the circumstances (which for understandable reasons plays a significant part in this case), there are other features which suggest that the court does not have a full picture before it.

The starting point is that the Claimant had only relatively recently been taken on by the Defendant as its head of IT. Whilst Mr Dignum on behalf of the Defendant sought to draw attention to some weaknesses in the probationary reviews that had taken place, the Defendant had nevertheless felt able to offer the Defendant a permanent post shortly before the accident. Further, when the question of the redundancy arose, Ms Helen Smith said in an email to the Claimant, “your performance isn’t in question.”

However, the Claimant was made redundant some months before any potential successor was employed. Mr Jones (who cannot be expected to have detailed knowledge of such matters) accepted that Mr Long was made redundant in April 2015 but that his replacement did not come in until “later that year.” Mr Long’s own case (see paragraph 9 of his fifth witness statement) is that the new head of IT was appointed in August 2015. The Defendant has not sought to contradict that, even doubtless it would have available the evidence necessary to do so. Based on this evidence, I conclude that the new head of IT, who was in effect the Claimant’s replacement, albeit that the job may have been at a higher level, was not appointed until about four months after the Claimant was made redundant. This is strongly suggestive that the

The Claimant’s account of the circumstances of his redundancy closest in time to the accident, is contained in the May 2015 Document. It is the Claimant’s case that the document was drafted together with the assistance of employment lawyers. It sets out essentially four grounds of appeal:

It must also be borne in mind that the Claimant’s account in the May 2015 Document was

On balance however I am not persuaded that the Claimant’s failure to refer to the risk of redundancy, whether to Dr Bourke or more generally in this ligation was a deliberate attempt to deceive. I say this for the following reasons:

In my judgment, it is more probable that the Claimant’s failure to refer to the redundancy as a possible cause of his ill health or, in the case of his consultation with Dr Bourke, even to acknowledge the risk of redundancy at all prior to the accident, is more probably a consequence

It follows from my conclusions under issue 6 that there is no finding of dishonesty here which

Section 1(1) of the Law Reform Contributory Negligence Act 1945 provides:

“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the Claimant’s share in the responsibility for the damage…”

Thus, the Defendant (upon whom the burden of proof lies) must show fault on the part of the Claimant which (ex hypothesi) together with the fault of the Defendant has contributed to the damage. The authorities, in the context of employers’ liability cases, warn against the finding of fault where the conduct of which complaint is no more than momentary inadvertence not least to ensure that proper standards of safety for employees are not diluted (see, for example, Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152). It might be added that the law, both through several reported decisions at common law and through the intervention of statute in the form of the Social Action, Responsibility and Heroism Act 2015, has shown a greater tolerance for the mistakes and misjudgements of those acting selflessly. It is not suggested that the Claimant’s vote in any sense of the word, but it was exactly the kind of misjudgement that policy demands should not be treated to partially.

The Defendant points to what the Claimant had to say to Dr Pierce about the accident. At paragraph 3.5 of her first report, she recounts him saying that he felt “stupid and embarrassed” after the accident and that he had called his boss and told her that he had “done a stupid thing.” Equally, in cross-examination, the Claimant accepted that it was “silly” to walk into a door frame. However, there is a considerable distinction to be drawn between silliness or stupidity upon injuring oneself and the kind of culpable fault necessary for a finding of contributory negligence. In every case of “momentary inadvertence”, one might well be justified in thinking that one had done something that was “silly”, but for reasons identified above the courts shy away from such a conclusion, in particular in the context of accidents at work.

On any version of events, this was a minor misjudgement by the Claimant, in the context of going to help a fellow employee. As he put it in cross-examination, “I was … moving at speed to help Craig, who I believe was actually going to hurt himself.” There seems no reason to disbelieve that explanation for why he approached Mr Jones. He knew that the doorways were ‘domed’ and no doubt careful reflection would have led to a concern that he needed to be careful not to bang his head. But assuming that he was indeed moving to assist Mr Jones then, regardless of his speed of movement, it seems to me difficult to describe this as any more than momentary inadvertence. In my judgment, the Defendant fails to show any fault on the part of the Claimant sufficient to justify a finding of contributory negligence.

The Defendant’s submissions on the quantification of damages have been relatively brief, since its focus has been on denying that the complex of symptoms described by the Claimant are genuine and/or are the cause of the accident.

The Claimant puts general damages at £45,000. This is based on the enduring symptoms described in his witness statements. The Claimant draws this figure from the Moderately Severe category of Psychiatric Injury in the Judicial College Guidelines for the assessment of General Damages in Personal Injury Cases, a range of £17,900 to £51,460. The Defendant agrees with this category (assuming the Claimant’s case on causation to be made out, as I find it to be) but contends for the lower figure of £35,000, given the risk of recurrent symptoms from the Claimant’s underlying fibromyalgia. Were the Claimant not to be at such risk of recurrence of some symptoms in any event, I would have agreed with the Claimant’s figure. However, given the risk of recurrence, that figure falls too high in the range of the moderately severe psychiatric condition. That said, a risk of recurrence of some symptoms from the underlying condition is of far less significance to the valuation of the claim than the actual severe symptoms that the Claimant has suffered. For these reasons, I allow the sum of £40,000 for general damages.

In terms of the calculation of loss of earnings, past and future, I have calculated the Claimant’s claim for past losses to his 48^th birthday, that is to say 25 May 2021.

I start first with the period of past loss. At the time of the accident, the Claimant was earning £51,000 gross, equivalent to £37,599 net. The Claimant claims past loss of earnings on the assumption that his salary after the accident would have increased to say £80,000 per annum gross, that is £55,043 per annum net, and takes a midpoint of £46,321 net, However, the only reliable basis for the calculation of loss of earnings but for the accident is the Claimant’s actual earnings of £51,000 per annum net. For reasons I have identified above, the evidence as to potential earnings for the Claimant is both inadmissible and unreliable. It is true that the Defendant concedes a slightly higher figure of £55,000 per annum gross in its closing submissions for future loss earnings, but that is in the context of a much lower multiplier than contended of by the Claimant. However in taking a more strictly mathematical approach than the Defendant (which will lead to a higher multiplier), I calculate his loss of earnings but for the accident on the basis of the figure for his actual earning of £51,000 gross.

Taking the Claimant’s loss of earnings from the date of termination of the accident to the date of calculation of past losses (25 May 2021), the period is 6.17 years. I take his gross past loss of earnings to be £51,000, that is £37,599 net per annum and therefore the anticipated earnings for his past loss would normally be £37,599 x 6.17 = £231,986. From this figure there falls to be deducted the Claimant’s actual receipts. It is common ground that he received £22,917 from the Defendant by way of pay, sick pay, holiday pay and redundancy compensation (see paragraph

The Defendant then contends for a further discount from the past loss of earnings claim. Given the evidence that, even on his own evidence, the Claimant has been and remains at risk of relapse regardless of the accident, the Defendant contends that the past loss of earnings should be deducted to reflect the risk that in any event the Claimant would not have been able to work over this period. In principle, this seems to me to be a legitimate argument. The Court is unable to say what would have happened over the past 6 years but for the accident. However there is certainly a risk that the Claimant’s past ill health would have interfered with his working capacity in any event. However, I do not accept the Defendant’s argument that the appropriate discount is 51%. This seems to suppose that, because there is evidence is that such a relapse would have occurred at some point, the discount must be greater than 50% reflecting that it is more likely than not that any relapse would have affected the Claimant’s working capacity by preventing him from working between the accident and now. The evidence in my judgment does not go that far. There is some evidence that the Claimant may have suffered interference with his working capacity, but for the accident. Apart from the underlying risk of further symptoms of the underlying pre-accident condition referred to by the medical experts, Dr Bourke refers in his letter of October 2020 to the risk of the Claimant having suffered a brief adjustment disorder or acute stress reaction as a result of the redundancy in any event.

Some discount has to be given to the past loss of earnings claimant to reflect the risk that the

The Claimant puts his claim for future loss of earnings as follows, set out in part within the updated Schedule of Loss in the trial bundle and in part in written closing submissions.

In closing submissions, both written and oral, counsel for the Defendant conceded that the multiplicand being sought by the Claimant was reasonable given the Claimant’s continuing ill health. However, he contended that the multiplier was too high and gave rise to too high a sum by way of loss of earnings, given that the Claimant is not, as he puts it in his written submissions, “fully disabled.”

In my judgment, the Claimant continues to suffer a disability as a result of his injury for the reasons set out above. That disability will persist. I see no basis for concluding that the Claimant is less disabled than the “average” person within the categories considered in the Ogden Tables. Indeed, the various purpose of the Tables is to seek to avoid the excesses of under- or overcompensation. In Wells v Wells [1999] 1 AC 345 at 379F, Lord Lloyd said that the Ogden Tables should be “the starting point, rather than a check” and that “a judge should be slow to depart from the relevant actuarial multiplier of impressionistic grounds.” However, I agree with the Claimant’s concession that, given the Claimant was at risk of relapse of his underlying condition regardless of the accident, some discount is merited to the Claimant’s discount of 30% referred to above appears on the face of it a reasonable estimate of that risk, given that it is only a relapse that would have led to loss of earnings that needs to be factored into this calculation. For these reasons, I consider that the appropriate multiplier is that for a male aged 48 to retirement age 68 of 19.66 (Footnote: ³⁰), discounted by 0.58, for contingencies (which reflects the Claimant’s argument in its Schedule of loss as set out above) that is a net multiplier of 11.40.

I have dealt in some detail above with the evidence that the Claimant relies on in support of a higher loss of earnings. As well as being inadmissible on the ground that the Claimant does not have permission to rely on expert evidence, it is in any event unreliable given that course of the Claimant’s employment since the mid 2000s. Further, as Mr Dignum QC pointed out in closing submissions, the kind of figures cited by the Claimant and his witnesses as potential earnings are far higher than the average level of such earnings in the tables within the current edition of Facts and Figures. This indicates that the multiplicand being contended for by the Claimant would only be the level of earnings of the very highest achievers in his line of work. Given the

The argument against forming too impressionistic a view applies both to the multiplier and the multiplicand. The best indicator of what the Claimant would have been earning but for the accident is what he was earning at the time of the accident. Accordingly, I calculate the Claimant’s earnings on the basis of his actual earnings at the time of the accident of £51,000 per annum gross, £37,599 net. Thus I calculate earnings but for the accident at £37,599 x 11.4 = £428,629.

Turning to the Claimant’s residual earning capacity, again it seems to me that there is no basis to consider the Claimant to be other than disabled. The appropriate discount factor pursuant to Table B is 0.53. Accordingly the net multiplier is 19.66 x 0.53 = 10.42.

The Claimant contends for a residual earning capacity of £12,500 per annum net based on the minimum wage for full time employment. The Defendant contends for a figure of £30,000 per annum net. This equates to gross earnings of about £38,000 per annum.

In my judgment, there is no proper basis for a figure as high as that contended for by the

The Claimant brings a modest claim for gratuitous care and assistance, based on the assertion that Mrs Long has both replaced parenting services that her husband would have provided and has set aside time to meet his practical and emotional needs. In addition the claim includes time spent in chauffeuring the Claimant when his driving licence was suspended.

The claim for care and assistance is put at 4 hours per week for a past period of 5.78 years (to December 2020). Given the well documented issues that the Claimant has had since the accident, which, for reasons given above, were on the balance of probabilities a consequence of the accident, the need for some care and assistance is easily justified. The claim is modest in terms of the number of hours. The hourly rate claimed is £7. This equates to around 75% of the aggregate day rate for the relevant period, based on spinal point 8 of the NJC pay scales. That rate is reasonable for the nature of the car involved. Hence I allow £8,416 for past care and assistance.

The Claimant claims sums in respect of case management and treatment costs totalling £15,754. Those figures are broken down in a spreadsheet from Ben Holden Limited within the bundle. It has not been disputed that the Claimant has incurred these costs, nor is their amount said to be unreasonable. The only issue is whether thy can properly be said to have been caused by the accident. I see no reason to doubt the assertion that such costs would not have been incurred but for the Claimant’s injuries consequent upon the accident and therefore I allow the sum claimed.

A claim is made for travel expenses in the total sum of £1,195. These are broken down in Appendix A to the Schedule of Loss. They relate to travel and hotel expenses relating to various medical appointments for the purpose of this litigation. The figures have not been challenged. Given that the Claimant has had to travel from Norfolk to wherever the appointments have been (mostly, if not entirely, London) for various appointments, the costs appear to me reasonable and allow the sum claimed.

The Claimant also claims, as both past and future loss, the interest on a loan that he took out in July 2017 to fund his rehabilitation. I accept that, following the judgement of the House of

The joint statement of Dr Bourke and Dr Bird at paragraph 8 recommends that further treatment for the Claimant should focus on his mood disorder with a combination of pharmacological and psychological approaches. Given that the Claimant has paid for retreatment in the past it seems to me more probable than not that he will in the future take up treatment that may be recommended. The Claimant’s approach to valuing that treatment is to seek a lump sum of £10,000. Subject to the issues of causation and genuineness of symptoms, the Defendant has not taken issue with that approach. Given my findings above, in my judgement the sum claimed is an appropriate award for such future costs.

I summarise the losses as follows:

Subsequent to the judgment being sent out in draft, the parties have agreed that the Claimant is additionally entitled to interest in the sum of £9,803 and the additional sum of £50,497 pursuant to CPR 36.17(4)(d).

For the reasons set out above, I am satisfied that:

I make an order in the terms that has been agreed by the parties consequent upon my judgment.