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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Siegel v Pummell  EWHC 4309 (QB) (18 December 2014)
Cite as:  EWHC 4309 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Peter Asher Siegel
|- and -
John Leighton-Williams QC (instructed by Plexus Law) for the Defendant
Hearing dates: 11th November 21st November 2014
Crown Copyright ©
Mr Justice Wilkie :
The Claimant's lay witnesses:
Pre accident medical records
"For the last year, difficult time"
"Feel exhausted and concentration, not sleeping"
"Stressful job senior IT consultant"
"Pressure to perform"
"Now in a good amount of pain, constant discomfort"
"Can we please explore the possibility of an EOW (Expression of Wish) for me due to my current inability to fully perform my work tasks as a result of medical issues resulting from a workplace accident. I would like to understand my options sooner rather than later."
Other Witnesses called by the Claimant.
The Defendant's lay evidence
Lester Pummell (the Defendant)
"Peter has not been engaged for a sufficient time with any one client to influence either their innovation, agenda or service excellence scores."
That, he says, was a fair reflection of what had happened during that year.
"When he applies his skills in the correct manner, Peter demonstrates that he has both the ability to influence solution development and practical implementation."
That too, he says, is a fair assessment of the Claimant's technical abilities of which he had no complaint.
"Unfortunately he has lapses in his professional engagements which results in difficulties with both client and other HP staff. Peter is well aware of these lapses and must concentrate more and learn alternative techniques for conflict resolution."
The reference to these lapses concerned his interpersonal skills. The Claimant had agreed that from time to time he was unduly frank and needed to address this.
Traumatic brain injury
The mechanism of injury. The published data concludes that the specific trigger for traumatic brain injury, which could lead to a diffuse axonal injury (DAI) is a rapid onset, forward acceleration of the brain. The chance of such an injury causing significant DAI is exacerbated if there is any element of rotation. This is precisely the injury mechanism in this case.
Loss of consciousness is a poor guide to the presence of traumatic brain injury. This view is based on animal models and sports concussion literature.
Dr Allder's evidence
i) The mechanism of injury, acceleration/deceleration injury. The type of injury is associated with contrecoup type brain injuries and causes axonal shearing which can lead to diffuse axonal injury. This is not significantly mitigated by the deployment of airbags.
ii) The acute symptoms include symptoms which were neurogenic in nature, i.e. visual symptoms, headache, dizziness, and nausea.
iii) The duration of post-traumatic amnesia over 24 hours.
iv) Lay witness statements describing clear memory difficulties in the first three days.
"rapid rotational acceleration/deceleration of the head in the coronal plane results in the deformation of the entire brain this overall mechanical deformation results in diffuse axonal injury with prominent axonal pathology in midline structures".
The commentary further says:
"These viscoelastic effects of rapid deformation prompt a classification of dynamic injuries where the applied forces occur in less than 50 milliseconds. Thus, axonal injury is dependent on both the magnitude of strain and the rate of strain during brain trauma this mechanism may potentially explain the large extent of midline damage that has been historically noted in human DAI including damage found in the corpus callosum. The forces required to cause the tissue deformation inducing DAI are often misunderstood, a common cause of confusion is the type of forces required to induce axonal injury because DAI has been observed in cases of falls and assaults as well as in victims of motor vehicle accidents inertial forces such as those produced by rotational acceleration of the head during automobile crashes often culminate in the contact force of the head striking the interior of the automobile. Thus, although the formation of DAI is produced by inertial forces, contact forces often cause the levels of acceleration necessary to produce DAI".
"Although conventional brain imaging techniques are useful for revealing macroscopic changes in severe DAI such as white matter tears and parenchymal haemorrhage, these techniques cannot easily detect the predominant pathology microscopic axonal swellings. Accordingly, patients and animal models with little macroscopic injury following diffuse brain injury may have normal appearing images of brain, leading many to believe that axonal pathology is substantially under diagnosed."
Psychologist for the Claimant
"The above difficulties are individually consistent with either organic impairment or psychological disturbance or with both. Acquired anxiety and low mood may produce some of the difficulties and aggravate difficulties of organic origin. Difficulties with memory and concentration and with heightened fatigue have been reported by Mr Siegel prior to the accident and in conjunction with both physical and psychological problems. Where cognitive difficulties and heightened fatigue are reported in the absence of feeling subjectively distressed or agitated, the prime source of these would appear to be organic impairment associated with cerebral injury. His sudden personality changes, including ballistic temper outbursts, such as have been shown by Mr Siegel, are also typical of cerebral injury, however, heightened irritability may be aggravated by symptoms of anxiety disorder, by anxious ruminations, by low mood, and by the frustrations associated with cognitive defects. A vicious circle is then created in that such difficulties may lead to lowered mood, agitation and frustration which may further reduce performance, self-confidence and motivation."
"Mechanism of injury, clinical history and the presence of post-traumatic amnesia for several days indicate that he suffered a severe head injury with associated cerebral injury. He also shows momentary retrograde amnesia.
At assessment, one year following the accident, he continued to suffer cognitive difficulties consistent with both cerebral injury and, to a lesser degree, with psychopathology. These include deficits in: memory, concentration, organising and planning, following group conversations, mental arithmetic, reading, decision making, multi-tasking, abstract thinking, and social judgment. During the course of assessment he showed difficulties in focusing on relevant information, his speech was garrulous and intense in often unnecessary detail. He had difficulties in keeping to the point, despite being aware of the limits to the time available as it grew late in the evening. Such cognitive difficulty, together with persisting heightened fatigue, lowered tolerance and reduced verbal control have had a debilitating effect on his workplace skills and interactions with colleagues and clients.
He reported persisting headaches, sleep disturbance and reduced tolerance for alcohol. He shows a pre-accident history of migraine headaches, sleep disturbance and heightened fatigue. Indications are that headaches have increased in frequency since the index accident.
He shows personality changes including impulse behaviour, reduced motivation, and indifference to others. He also showed heightened irritability and increased frequency and severity of temper outbursts which have had a detrimental effect on his interpersonal relationships.
Psychologically he has developed agoraphobis with panic attacks and symptoms of partial PTSD."
Gillian Levett live evidence.
"There is a lack of evidence that Mr Siegel sustained a head injury, there is a lack of evidence that he sustained a brain injury, there is a lack of evidence that he had, as a consequence of his accident diffuse axonal injury. There is a lack of evidence that he had significant neuropsychological abnormalities on clinical testing. The evidence that he has sustained cerebral injury appears to have arisen from the late Mr Price (a neurosurgeon who has no expertise in psychiatric disturbances) and Ms Levett who has not only been shown to be unreliable but has been removed from her professional practice because of her unprofessional and biased activities. The new evidence appears to come from Dr Allder, but I am at a loss to understand the neurological explanations that he put forward. I am unaware of his psychiatric expertise or training."
"it is not clear how the Claimant could recall for me events that he has no memory of. If he has no memory of them then it would not be possible for him to relate them to me. The important point is that he has a pattern of recall following the material accident which does not follow the pattern of that which occurs following neurological injury."
"There are many symptoms that he has which are not typical of brain damage. First post-traumatic amnesia secondly the onset of tunnel vision, thirdly light sensitivity, fourthly emotional numbness, fifthly, the pattern of his headache, sixthly loss of topographical orientation, seventhly the pattern of the development of symptoms over time which do not compose a syndrome typical of somebody with brain damage."
"he is said to have DAI,- white cerebral damage does not produce the same clinical symptoms to grey matter damage. In particular, one sees, with the former, slowing of cognitive processes and motor speed. The neuropsychological reports show him to remain a highly intelligent man with a good memory and no frontal executive deficits. His speed of responses is superior."
i) That, on the balance of probabilities, the Claimant has suffered IBS.
ii) That adequate investigations have been carried out to exclude inflammatory bowel disease.
iii) The severity of the Claimant's IBS has not been significantly altered by the accident.
iv) There has been an increase in frequency and severity of his acute attacks of vomiting and diarrhoea.
v) On balance, these attacks of vomiting and diarrhoea are due to a functional gastrointestinal disorder which, in turn, relates causally to the brain-gut axis disrythmia that has been caused by the accident and is well documented in the paperwork.
vi) To date, treatment of the Claimant's IBS and functional gastrointestinal disorder has been inadequate. A multidisciplinary approach to treatment is required, involving centrally targeted therapy and manipulation of his diet. Until that is adopted, from both the IBS standpoint and that of his functional gastrointestinal disorder, the prognosis remains poor.
Neuropsychology- Joint statement
Professor Morris's Neuropsychological assessment
Professor Morris in cross-examination
i) a specific difficulty with forgetting information,
ii) not able to focus because of headache or fatigue,
iii) he had enough testing, was becoming irritable, or
iv) a combination of those.
i) Confusion or disorientation
ii) Loss of consciousness of 30 minutes or less
iii) PTA for less for less than 24 hours
iv) Glasgow coma score of 13/15 after 30 minutes
v) And/or other transient neurological abnormalities, such as focal signs, seizure, and intracranial lesion not requiring surgery.
"He shows very superior intelligence with strength in processing speed. He has a mildly but significantly reduced memory, particularly from verbal material. His executive functioning is consistent with his intellectual functioning."
Dr Allder's written document
"Surprisingly extensive DAI can occur even without a marked loss of consciousness and that loss of consciousness appears to be dependent on the density and/or distribution of axonal pathology in select regions such as the brain stem."
"initial and persistent cognitive defects are the most common complaints after traumatic brain injury and can present significant challenges to independent living, social re-adaptation, family life and return to work. Frontal executive functions (problem solving, set shifting, impulse control, self-monitoring, attention, short-term memory and learning, speed of information processing and speech and language functions) are the cognitive domains typically impaired. Injury to sub-cortical white matter connecting these regions readily account for these difficulties." (C. Macalister Dialogues in Clinical Neuro Science 2011)
Submissions, discussion and conclusions
i) A summary of the contending positions of Claimant and Defendant
ii) My assessment of the lay witnesses
iii) My assessment of the seriousness of the accident
iv) My assessment of the immediate medical records
v) My assessment of the Claimant's past medical history
vi) My assessment of the medical experts and the psychologist experts
vii) My conclusions on causation
viii) My assessment of the evidence of the employment experts
ix) My conclusions on future employment prospects
i) A summary of the contentions of the Claimant and Defendant
ii) My assessment of the lay witnesses
iii) Assessment of the accident
"the specific trigger for a traumatic brain injury which could lead to diffuse axonal injury is a rapid onset forward acceleration of the brain. The chance of such an injury causing significant DAI is exacerbated if there is any element of rotation."
iv) Assessment of the immediate medical records
v) Assessment of the Claimant's past medical records
vi) Assessment of the medical and psychological experts
"I have also conducted my own thorough review of the matter and concluded that the only appropriate sanction in all the circumstances of this case is that the registrant should be struck off. In my judgment, the persistent breach of professional boundaries by the registrant was so serious and a lack of insight into the inappropriateness of her own conduct so profound that striking off is the only appropriate and proportionate sanction which both reflects the gravamen of the case and the protects the public interest."
vii) My conclusions on causation
viii) My assessment of the employment experts
1. Mr Evans saw no evidence at the interview that the Claimant should not be able to work at his current level, or that which he enjoyed prior to the accident.
Mr Burden considered the evidence overwhelmingly supports the conclusion that the Claimant is currently not able to sustain a career at the level he had reached prior to the accident. Mr Burden relies on his employment record with T-Systems and HomeServe, in which he was unable successfully to fulfil his duties. He also relies on evidence of his behaviour at interview. Furthermore, the failures with T-Systems and HomeServe have damaged his future employment prospects as they would be likely referees.
2. They disagree on future earnings potential.
Mr Burden's report was based on a career unaffected by the accident. He accepted that the Claimant may have made choices which would have reduced his total earnings in future, for example, becoming a part-time consultant working on a day rate which many professionals do.
Mr Evans offered a wide range of potential earning levels from £65,000 - £140,000 basic salary plus benefits, due to the unknown level of role the Claimant would be able to secure in the future.
3. On employment longevity, Mr Evans thought it unlikely the Claimant would have remained in a post of real seniority beyond 55 and may then have chosen to pursue a career, such as consultant or contractor.
Mr Burden contends that, in the future, it will be reasonable to expect a person to have a full time career in IT through to statutory retirement age. Most organisations of any size now employ IT professionals and almost every employer relies on technology. Employment prospects, even for older employees, will be good. There is a significant market place for IT consultancy which would allow the Claimant to prolong his career for many years beyond fulltime employment should he wish to do so.
ix) My conclusion on his employment prospects
x) Quantification of the award
Past loss of earning capacity
Past treatment costs and travel costs to treatment
Additional accommodation costs
Future loss of earning capacity