Mr Justice Wilkie :
- This is an assessment of damages in a claim brought by the Claimant against the Defendant arising out of a road accident on 16th November 2009; liability has been conceded.
- The Defendant's car struck the Claimant's vehicle from behind when the Claimant was stationary at traffic lights in Norwich. The estimated speed of the Defendant's car at the point of the collision has been variously stated as between 20 and 35 miles per hour. Photographs show the damage to the rear of the Claimant's vehicle and to the front of the Defendant's. The damage to the Claimant's vehicle was such that it was written off for insurance purposes.
- The parties are fundamentally at odds on the issue of quantum. The claim is put forward by the Claimant at £2,172,235; of that £75,000 is by way of general damages and £3000 by way of interest on general damages. The other claims are for past loss of earning capacity, past treatment costs and travel, future loss of earning capacity, which amount to just over £2 million, additional accommodation costs, retraining and set-up costs, and future treatment. The Defendant's counter-schedule denies that any damages arise in respect of any of the heads asserted in the Claimant's schedule, save in respect of general damages for which the Defendant says the Claimant stands to be compensated to the extent of £5000.
- The Claimant's claims are said to arise from a cluster of cognitive, physical and behavioural deficits that he attributes to "severe, subtle, permanent closed brain injury secondary to diffuse axonal injury" ("DAI"). It is from those permanent deficits that he says the losses set out in his schedule arise and that they were caused by the collision between the Defendant and the Claimant's vehicles.
- The Defendant's position is, first, that, assuming the Claimant's reported symptoms are genuine, the Defendant denies that the Claimant sustained any head injury or brain damage; at most he suffered a whiplash injury but not a significant one. The symptoms of which he complains are said to be psychologically based arising in two ways: first, his psychological condition has always been such that such symptoms were going to occur in any event as a consequence of upsets in his life, such as stress at work, his mother's death, followed by later deaths in the family, estrangement from his siblings following his mother's funeral, domestic problems, and the recurrence of long-established ill health. Second, it is said that the persistence of his symptoms, particularly from the middle of 2010 are "iatrogenic" in nature that is they arise from the claimant, unconsciously, reflecting the expectations of his medical and legal advisers who have informed him, erroneously, that he sustained a brain injury in the accident. The Defendant contends that the accident has not affected the Claimant's ability to obtain and retain employment at the level he previously held.
The Claimant's lay witnesses:
- He has provided two witness statements dated 27th June 2013 and 22nd July 2014.
- He was born in New York on 17th August 1971, is a naturalised British citizen from November 2010, is married (his second marriage) to Amber Patterson, an Australian born, naturalised, British citizen. They have a daughter, Juniper, aged 8. He was divorced previously in 2003.
- He is a high-achieving, driven person who operated at a high intellectual level throughout his working life and had good physical and mental stamina. He accepts he has a non-conformist streak and has had brief periods of psychological illness in the past, none of which interfered with his ability to operate at a high level.
- He has been measured with an IQ of 136, which places him in the "very superior" category. He had an outstanding academic school record which was not reflected in his university record, after which he worked in the IT sector. At 23 he worked for ROI Computer Services, designing IT solutions. Between 26 and 28 he worked for Alliance Consulting Group, but was made redundant in June 2000. His marriage broke down in 2000. He was unemployed for 7 months before finding work in the UK as a project manager with Red Brigade in 2001. He was again made redundant after 8 months. He remarried in 2003.
- In August 2002 he was employed by RAC Software Solutions as an IT architect where he remained for 3 years before moving to Computer Science Corporation, designing large corporate IT systems. He became bored after a year and took a voluntary redundancy package. He joined EDS in 2006 in a role requiring him to come up with "big ideas" to transform IT systems not performing as well as they should. He worked as Chief Technical Officer ("CTO") on a contract for Xerox until 2008, when EDS was taken over by Hewlett-Packard ("HP"), a competitor of Xerox. He was moved to a different role on a contract for the Foreign Office until a new project arose in September 2008 working for Aviva. He led a team of between 30 and 40 responsible for designing a new system for Aviva. This involved travelling and working in Norwich.
- When he returned to work after the accident, in mid January 2010, he found that little progress had been made. He had become short-tempered and had lost the organisational skills and lateral thinking required to put the project back on track. Within a couple of weeks he was replaced as the CTO on that contract and placed on gardening leave. Between February 2010 and May 2011 he was, for about one-third of his time, on gardening leave, for one-third of his time he was off work through illness, and for one-third of his time he was working on small, ad hoc contracts. He felt he was being forced out of HP and eventually, in April 2011, he resigned and brought a legal action against HP in the USA for disability discrimination which, in due course, was settled.
- He had been highly sought after and was contacted by many "headhunters". In the Spring of 2011 was offered a role as head of architecture and engineering by the UK arm of T-Systems where he started to work in May 2011. His team was based in Bristol but, towards the end of 2011, his role was diversified involving travel to Germany twice a month. He continued working until March 2013 when he took 3 months off to undergo neuro-rehabilitation and cognitive behaviour therapy for his ongoing symptoms. His period off work was extended to the end of August 2013 when T-Systems terminated it, giving rise to a claim by him in the Employment Tribunal which, in due course, he discontinued.
- He remained in demand and secured 3 different written job offers within a short time. He accepted one working in an executive director role with HomeServe whose place of business was close to his home address. That, however, did not work out and he was removed after approximately 2 months, since when he has been unemployed.
- Immediately after the accident, he had severe headache, problems with his vision, and cervical spine pain. He had a persistent headache the following day and his recollection of the period of some 2 weeks after the accident is patchy. He stayed in his hotel for 2 days, too unwell to drive or work, and his wife came to drive him home on the third day. He tried to drive but was unable to.
- After his initial attempt to return to work the week after the accident, he still had a very bad headache, so he returned to A&E on the 26th November 2009. He had headaches, tunnel vision, and tingling on his face as well as memory loss, he was admitted overnight and discharged the following morning with painkillers and advice to take time off work.
- He was certified unfit for 2 months, during which time he became aware of a range of physical and cognitive problems involving his short-term memory, concentration, and difficulty with organising and planning. He lost his libido, became indecisive, lost the ability to multi-task, lacked social judgment, would suddenly blurt out inappropriate comments, and suffered pervasive mental fatigue. He lost his previous tolerance to alcohol and developed a very short fuse, becoming susceptible to uncontrollable outbursts of temper for practically no reason. He showed less empathy to others. Those symptoms have persisted, though he has learnt strategies from his psychologist to control some of the more damaging aspects of his behaviour as well as on how better to control his fatigue. The psychologist, Ms Levett, also treated him successfully for certain symptoms of mild post-traumatic stress disorder.
- During his time at T-Systems, he spent much of his time working from home, which enabled him to work intensively in short bursts before becoming too tired to continue. By working from home, he developed strategies to cover his inability to work intensely for a sustained period. Whilst with T-Systems, he was able to organise and deliver a one week conference in 2012 in Slovakia with 275 delegates but, after making the key note speech each morning, he would disappear to his room to rest for the remainder of the day. Thus, he was capable of operating at a high executive level for short periods of time and sought to cover his inability to do more than that.
- In January 2011 he had a vomiting episode which required his admission into hospital. During his life he has had intermittent stomach complaints including irritable bowel syndrome.
- At the age of 16 he had been admitted for 2 weeks as an inpatient at a mental health unit following his taking 4 valium tablets whilst feeling suicidal and has suffered intermittent bouts of low mood during his adult life.
- He had a sports injury to his left shoulder and, in a motorcycle mishap in March 2007; he had an injury to the right shoulder. Shortly after that he had surgery on the left shoulder and then developed pneumonia. He suffered a reactive depression to these events for which he was referred to a psychiatrist in March 2008. In August 2008 he reported some anxiety in relation to his job but had recovered by September 2008. In November 2008 he was involved in a minor road traffic accident which was his fault. He had a period of retrograde and post accident amnesia for a period of just short of 24 hours following that accident.
- Following the present accident, his GP prescribed oxycodone for his crippling headaches for a time. Even when his continuing headaches are not so bad, he suffers from the cognitive and behavioural issues and debilitating mental fatigue, which he describes as crushing. He also has disinhibited temper outbursts.
- Since the regular sessions of cognitive behaviour therapy began in April 2013 he has noticed significant improvement such that he no longer has issues with anxiety and agoraphobia which made him feel very uncomfortable in crowded places, for example attending rock concerts.
- The psychotherapy has not alleviated his cognitive symptoms, though he has developed strategies to minimise their impact, for example to manage his fatigue. He realises that full time work is not a reasonable expectation because, even with the management techniques he has learnt, he is unable to work at the same level of intensity in the sustained way that he previously did. He now believes he is going to have to find something that allows him to work 2-3 days a week with part time hours. He has developed the idea of establishing a company to restore and modify classic motorcycles and cars which he expects to produce a profit of £1500 a month.
- He attributes the short lived employment with HomeServe to his inability to avoid blurting out inappropriate comments, which gave rise to conflict with his peers and resulted in them releasing him.
- He has suffered from a reduced sense of smell and taste and has more difficulty with reading when he becomes tired.
Pre accident medical records
- On 16th September 2003 he went to see his GP complaining of tiredness. At that time the note said he reported being a light sleeper, suffering fatigue but he was not depressed and denied any stress. He was reviewed on 29th September. He didn't sleep well, woke at 3 and then at six, not refreshed, but his work was fine, he did not work excessive hours, though there was European travel involved. He was not depressed or stressed. On 27th November 2003, he complained of a cough for 3 days, described tiredness and fever on and off, night sweating.
- On 15th June 2004, he complained of lumbago with sciatica. He was reviewed on 28th June when the sciatica was settling, after medication. On 26th July 2005, he complained of irritable bowel syndrome and migraine. There was reference to IBS in a hospital report of 28th June 2005. Eventually, he saw Dr Iqbal who got his medication right, after which, for a number of years, he had not suffered from IBS.
- On 30th June 2006, he complained of a panic attack. He could not recall what had caused it. He had had one or two over the years. This was about the time he started with EDS.
- On 19th October 2007, he was not sleeping. He had a high powered job in computers and was away from home. He was advised to relax. He spoke of a history of anxiety. On 5th December or, perhaps, November, 2007 (the records are unclear) the notes refer to him going to hospital for a colonoscopy. He was advised to relax. He spoke of a history of depression on his mother's side.
- On 5th December 2007, the hospital A&E records show that he visited with a dislocated right shoulder which was reduced; he was given a collar and cuff and prescribed analgesics.
- Prior to that, on 23rd November 2007, he had an appointment with a gastroenterologist, referring to blood in his stool and diarrhoea almost every day. He was thought to have been suffering from IBS. He referred to a very stressful job as an IT consultant at Rolls Royce. The doctor thought it could be post infective IBS but organised a full colonoscopy with biopsies. On 11th January 2008, on a visit to the GP about his right dislocated shoulder, there is a note about general anxiety being much improved as he is not in work now. This was prior to the surgery on his left shoulder on the 6th March 2008, following which he had pneumonia and suffered from depression.
- On 14th March 2008, he complained of irritable bowl syndrome and, on 17th March 2008, the gastroenterologist wrote that the Claimant had not commenced any of the medications for IBS, he hadn't needed to as most of his thoughts had been on recent surgery on his shoulder. He had asked the Claimant not to take medication and to treat his IBS symptomatically.
- On 27th March 2008, he reported a depressed mood and was referred to Dr Nasr at the Priory. The GP notes record him as "feeling down, not eating or sleeping well, lost 2.5 stone over 10 weeks, requested a private referral". He was signed off work with a depressed mood for one week. The context was depression about the state of his shoulders, post operation, the pneumonia he had suffered, and the economic downturn, working in a large corporate environment where there was always the possibility that it would "go bust".
- The notes of Dr Nasr record on 29th March 2008 that, for the last 6-12 months, he had been feeling depressed with anxiety and panic attacks and tunnel vision. He had not been functioning as normal. In December he had dislocated his right shoulder in a minor motorbike accident. He had surgery on his left shoulder 3 weeks before, followed by pneumonia. He was emotional and a bit tearful. He had lost 2 stone in the last 2-3 months, was suffering from poor memory, short-term, a loss of concentration and had not been sleeping.
- He described himself as a senior IT consultant in a stressful job. Since November it had not been so good, he was working for Xerox but had not been at work through his surgery. He travelled a lot in his work; he tended to stay in his jobs not very long, about 1.5 years, gets bored easily. His longest job was 3 years.
- On 5th April 2008, he saw a therapist at the Priory. The following appear in her notes:
"For the last year, difficult time"
"Feel exhausted and concentration, not sleeping"
senior IT consultant"
"Pressure to perform"
- He also says in the context of his shoulders:
"Now in a good amount of pain, constant discomfort"
- He is also recorded as saying he doesn't get on with his boss, feels bullied, "she's a huge bully", and has been extremely depressed with a sense of social isolation.
- On 14th June 2008, Dr Nasr's further notes record "stressful time at work, a lot of change, mood stable, came back from holiday, jet-lag, still low libido, sleep still interrupted".
- On 27th August 2008, Dr Nasr wrote that the Claimant had brought his appointment forward because, for the last 2-4 weeks, he had low motivation, his sleep had not improved, he had taken a step back at work. Since May he had been working from home and was concerned about being made redundant. The outcome of that appointment was recorded in Dr Nasr's letter of 3rd September 2008, consistent with his notes, saying that "it seems he is under some pressure from work with the economic downturn and the threat of redundancy, also he has been working from home all the time for several weeks
- In December 2008 and February 2009 there were 3 visits to the hospital for viral gastroenteritis or gastritis.
- The journey from Birmingham to Norwich that day had taken 5 hours. He had left mid morning. He could not explain the discrepancy between that description and what he had told the late Mr Price, the neurosurgeon whom he consulted initially, that the journey had taken 3 hours or the fact that the accident had occurred at about 1.50pm. He agrees that Mr Price noted that he had described himself as tending to worry, that he did panic at times and that he distinctly remembered the 3 hour drive. He said that his work had been affected by his mother's death in that he had been away from work for 3 weeks in New York.
- He had told Mr Price that he suffered neck pain and lower back pain and some discomfort in his shoulders which had arisen from the accident. His previous problem with his shoulders had become asymptomatic before the accident.
- The headaches he had been having constantly since the accident did not involve pains in the eyes but pain in the orbit of his upper right eye, which starts in the upper right side of his head and moves back to the left.
- He remembered being stationary in a line of traffic at a red light. He did not remember the collision. He did not recall the sound of the collision. He remembered hitting his head against the headrest and pushing against the seatbelt. He also remembered leaning forward to the left to change the radio station immediately prior to the accident. He did not know if he had hit the car in front. He did not recall getting out the car. He remembers standing alongside the driver's door with his head in his hands and sitting in the passenger seat with the door open. He could not recall speaking to the Defendant for 10-15 minutes nor describing his Daimler as his pride and joy, nor being angry with the Defendant or not being injured. He could not recall if he went to the office in the days following the accident. He now knows that he sent some emails but was unaware whether that was in the hotel or the office.
- Going through the GP's notes, on 30th November 2009, he had been to the GP for whiplash injury with a headache. He was issued a medical certificate.
- On 10th December 2009 a further certificate was issued. He was said to be still no better. He had seen a neurologist (he believes in the hospital in Norwich) and was told had post-concussive syndrome. On 18th January 2010 there was a further "med 3" duplicate issued. Thereafter he did not visit his GP until 27th April 2010 for a medication review, analgesics for back pain, he reported no problems. Thereafter, on 21st May 2010, he had pneumonia or influenza and was prescribed medication. On 28th May 2010 he had a small skin abscess under his chin and, on 1st June, he had a submandibular gland enlargement. He was referred privately for an appointment on 2nd June 2010 where, it was reported, he was on strong painkillers for cervical as well as shoulder problems. It was noted that he had a history of chest infection 2 weeks previously and developed some swelling in the left submandibular area. He had some antibiotics and was getting pain on the left side of his face and neck. The gland, on examination, was not markedly swollen.
- It was put to him that, given his history of going to the GP in the time prior to the accident, it was odd, if he was suffering the symptoms he now complains of from immediately after the accident, that he had not visited the GP during that period complaining of these symptoms. He said that he was not aware of symptoms so as to prompt him to go to the GP during 2010 even though he says in his witness statement that he was aware of these problems.
- On 25th October 2010 he emailed Mr Parry, his line manager at HP, that his barrister was fairly certain he had sustained a brain damaging injury in the road traffic accident, was referring him for more tests to medical specialists, that the suspected damage was in the area related to short term and new memory, concentration, mental fatigue, and temper. There were some tiny lesions, the barrister suspected, more than likely to be permanent. He states that "it looks like I have possibly picked up a permanent disability as a result of the accident that would certainly explain some of the things that have happened in the past year".
- On 10th November 2010 he attended the hospital complaining of feeling generally unwell, including headache and vomiting. His previous medical history was recorded as including a head and neck injury from a road traffic accident one year ago. On 17th November he had been referred to the Priory with an episode of diarrhoea and vomiting of 10 days duration which had not settled, even after attendance at hospital. He was admitted to the Priory under the care of Dr Iqbal.
- On 25th November 2010 Dr Iqbal wrote that he had been admitted with an 11 day history of nausea and vomiting. He had similar episodes every year for the last 3 years, about twice on average. There was a strong family history of Crohn's disease and Dr Iqbal suspected that this was an underlying possibility.
- On 1st December 2010, Dr Iqbal reviewed the Claimant, the vomiting had developed into a bad headache with vomiting. Dr Iqbal raised whether it might be a migraine, a suggestion the Claimant, at that stage, was prepared to countenance. Mr Iqbal organised an MRI scan, in light of the headache. That took place on 8th December. It was normal, as was a colonoscopy conducted on 21st December.
- At about this time the Claimant had 4 interviews with Ms Levett on 22nd November, 23rd November, 6th and 20th December.
- At HP, the Claimant emailed his new line manager, Mr Waterfield, on 4th January 2011, about his car accident in November 2009. He stated it now appeared that he had suffered a permanent brain injury along with an associated disability. He was expecting the first official report that month to state that he had a subtle brain injury along with PTSD. He expressed dissatisfaction with his annual assessment, which had been received in October 2010, and felt he had been treated unfairly due to his disability as a result of his workplace accident.
- The Claimant's wife was due to have surgery on the 14th January 2011 and he arranged to be away from work until 24th.
- On 10th January Mr Waterfield responded to the Claimant's email. He indicated that Ms Ben Fredj would initiate an occupational health ("OH") review and he would initiate a review of his FPR grading, initially without the findings of the OH review.
- On 28th January 2011, the Claimant had a recurrence of diarrhoea and vomiting which settled after 24 hours. A wireless capsule endoscopy was organised for 3rd February and it was normal.
- An email dated 9th February 2011 to his colleagues, shows the Claimant endeavouring to be a fully contributing member of his team but, also on 9th February, he emailed Mr Waterfield following a conversation on the 8th in the following terms:
"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."
- On the same day, Mr Waterfield responded to that email, effectively playing a "straight bat" saying that there had been very few cases of EOW accepted in their area but it would be assessed on the basis of the needs of the business in support of their clients. He also indicated that the OH review would continue independently of any EOW application.
- On 11th February the Claimant emailed Mr Waterfield, in the context of OH wanting sight of his medical records, that he understood there was a difficulty in that the current diagnosis and reports were covered by legal privilege and that there had been no significant involvement with his GP or NHS other than acute care immediately after the accident. The diagnosis of subtle brain injury and PTSD could not be released until his legal team was comfortable that they supported the case. He stated that, whilst that was going on, he did not feel he could continue to fulfil his role without putting his health and well being at further risk and asked for Mr Waterfield's help to enable him to exit via an EOW so that mismanagement and other issues from the last year could be put behind everyone.
- This position was repeated at the end of a long email on 17th February 2011 which otherwise dealt with technical matters.
- In the meantime, the Claimant says that he had been headhunted by a number of possible employers, including T-Systems, and, by 18th February 2011, they emailed him, further to recent discussions, confirming their offer of a position of senior manager from 15th May 2011. That letter was countersigned by the Claimant on 10th May 2011. Attached to it were a number of forms, including an equal opportunities monitoring form in which, on 10th May 2011, the Claimant indicated that he did not consider himself to have a disability. In the medical, pre-employment, questionnaire, also signed on 10th May, he said that he was awaiting a final diagnosis of subtle brain injury as a result of a road traffic accident and that he was suffering from a possible brain injury and PTSD as a result of a road traffic accident.
- On 18th February 2011, the Claimant emailed Mr Waterfield that OH couldn't understand that his diagnosis and reports were covered by legal privilege and could not be released, that he had told them what the diagnosis was, so they could get their own doctor, who understands the condition, to complete a separate assessment. He again requested Mr Waterfield to explore the possibility of an EOW.
- On 3rd March 2011, the Claimant indicated that his Grandmother had died.
- On 14th March 2011, Mr Waterfield completed his review of the Claimant's performance review, initially undertaken by Mr Parry. He upheld it and informed the Claimant.
- On the 27th April 2011 the Claimant was due to attend an OH assessment, but it was cancelled without any notice to him. He considered this to be the "final straw" and indicated that he had no option other than to resign his position with HP, his last day of work to be 23rd May 2011, the day he was due to start work with T-Systems. He was on garden leave until his notice expired.
- He had a further road traffic accident on 21st April 2011. It was a very minor matter, where another vehicle drove into the side of his, causing little damage to his vehicle and no personal injury to either him or his daughter, who was with him. That gave rise to court proceedings but the Defendant accepted liability and the matter was settled by the insurance company who, by chance, insured both parties.
- From 10th July 2012 15th April 2013 he was being treated with anti-depressants, having reported feeling low in mood, giving, as the context, his mother dying a year ago, his relationship with his brothers breaking down, his rocky relationship with his wife, his changing 3 jobs in 2.5 years, and the road traffic accident over 2 years ago that left him with headaches, pain in the arms, and a diagnosis of diffuse axonal injury. Initially, the low mood was treated with 20mg of citalopram. In August, the low mood continued and his dosage was raised to 40mg. In December 2012 it was reviewed and his medication was repeated. In March 2013 he was seeing a psychologist who had recommended him being weaned off anti-depressants and the dosage was reduced and on 15th April 2013 he was doing well on that reduced level of dosage.
- He agrees that his view is that HP's inaction/behaviour following his accident exacerbated his condition. Had they fulfilled their duty of care it would have been possible for him to obtain a full diagnosis earlier and possibly attempted a rehabilitation plan which would have enabled him to perform his role for HP.
- He agrees that he is able to perform at high level for varying periods of time, depending on the type of work. Sometimes it can be for weeks at a time, sometimes only for a short period, but there is always a price to be paid in terms of his tiredness after the intense effort has finished.
- His anxiety-related PTSD/agoraphobia symptoms had alleviated within a few weeks of his treatment by Ms Levett in March 2013. He believes Professor Trimble was involved in his surveillance. He disagrees with pretty well everything Mr Parry says in his witness statement.
- In re-examination he said that, after the November 2008 accident, which he believes was caused in part by a bad reaction to zoplicone, he went to Dr Nasr and that medication was withdrawn.
- On the first Wednesday of the trial, after giving evidence, he slept from 6pm to 7.30am. On Thursday, when the court was not sitting, he and his family went into the centre of London but he was fatigued and returned to where they were staying and slept the rest of the day.
- After the accident, upon his return to work, no progress had been made on the account he was managing and he found it increasingly difficult to direct the team. He could not multitask even between as few as 2-3 things.
- After the accident he was not aware of certain elements of his personality change. For example, he blew up at a colleague to a degree that they had failed to patch things up.
- He felt he was running out of options with HP after the change of line manager to Mr Waterfield. He had been looking forward to having him as line manager, not having got on with his predecessor, Mr Parry, but when he saw the way he tried to manage him out of the company and had no interest in responding to his concerns, he realised he was running out of options. Even so, between the 18th February 2011, when he received the T-Systems job offer, and his resignation on 27th April 2011, he was still trying to stay with HP, which he had regarded as an extremely challenging and fulfilling job with lots of potential.
- When he joined T-Systems, he said he did not have a disability. He thought if he had declared one they would not have allowed him to start and he was having difficulty accepting that fact.
- In addition to resolving his PTSD symptoms within 3 sessions, Ms Levett was offering him strategies for coping with his cognitive issues, such as fatigue management, needing to slow down the speed of his verbal communications, and taking more notes.
- She met the Claimant in 2001 in London. They moved to Birmingham in 2002 and married in 2003. Their daughter, Juniper, was born in 2005. She described the Claimant, when she met him, as gregarious, confident, popular, energetic, and well-liked, a very efficient thinker, successful in his career, proud of being able to get his job without having to work ridiculous hours.
- Prior to the accident he had stomach issues but they were in the background, not interfering with day to day life or work. He had experienced infrequent migraines once or twice a year, which he managed with painkillers. He also experienced symptoms of IBS, repeated episodes of diarrhoea, but only one occasion when he suffered with vomiting so as to require medical treatment. He was managing his IBS symptoms and recognising the triggers.
- Following the surgery to his left shoulder, after both shoulders had been injured in separate incidents, his mood deteriorated and he suffered a period of depression, she believes triggered by the operation. At that time he had difficulty sleeping.
- She heard of the accident by phone from the Claimant. He said there had been an accident; he was standing by the road side; he sounded agitated and vague; he had been hit from behind; and then referred to a fire engine arriving.
- That evening he telephoned to say his colleague had taken him to hospital. There was a second phone call from hospital, they had decided to keep him in as he had suspected concussion. He still seemed confused and could not explain how the accident had happened.
- The following morning he phoned, he had not had a good night's sleep and then phoned again that he was to be discharged that evening. From the hotel he rang and said he was having bad headaches.
- On the following day, the 18th, he phoned her, sounding agitated and scared. He had a bad night's sleep, was having bad headaches and wanted to be home. He sounded upset. She decided to drive to Norwich to bring him home. He looked very pale, was withdrawn, he kept saying he did not know how the accident happened, seemed agitated and confused. He was unable to drive them home, having attempted to do so briefly, but his headache was too bad and she drove him to Birmingham. He was struggling to cope with the headache.
- His behaviour was odd. Two days after their return home he completely lost his temper, when out in Birmingham, at a driver and insisted on going to the man's place of work to sort it out; he worked at a nightclub. Effectively, he lost his temper in an extreme way both with the driver and, subsequently, with his wife. Prior to the accident he was not an aggressive person. His verbal aggression has continued both to Ms Patterson and their daughter. He has unpredictable bouts of temper at the smallest things which she finds quite scaring. Alternatively, he will simmer with rage. He also tends to come out with inappropriate comments that will offend people, which is a change from before the accident.
- Since the accident he has suffered physical symptoms, cognitive and behavioural difficulties, constant fatigue, and changes in his personality.
- He has suffered from almost constant headaches, totally debilitating; he has been prescribed oxycodone for them. His headaches are triggered by tiredness, deriving from any mental effort and they are very frequent. Sometimes they are so severe he will have to go and lie down.
- He has also suffered bouts of vomiting since the accident, on occasions he has been admitted to hospital.
- He suffers persistent mental fatigue. Before the accident a 60 hour week was no problem for him but now he only manages to work about 15 hours a week. When he is not concentrating on work he mostly rests or sleeps. He has the ability to push himself through the fatigue but will suffer for it afterwards; it will take longer for him to recover. He still has a quick brain when fresh but, if required to sustain his concentration for more than a relatively short period, "the shutters will come down".
- She confirms his account of creating the impression, when with T-Systems, that he was busy working at home, when, in fact, most of his days were spent sleeping.
- She confirms the continuation of his disinhibited temper outbursts both at her, at others and at his daughter. They are walking on egg shells.
- He has struggled to write his emails in an appropriate tone. They often come across as aggressive, rambling, and shambolic. She has to step in and edit them to reduce their likelihood of causing offence.
- She describes his agoraphobic tendency, particularly when in large crowds, and gives an example of a particular concert at the O2 Academy in Birmingham where he had to go to the back of the hall.
- He has also developed disinhibited spending habits and his social skills have deteriorated dramatically. He now has a complete lack of empathy, which affects his relationships in business and with friends. It is as if someone has scraped off his social veneer. Though a brash New Yorker, he was gregarious and witty and people warmed to him, but since the accident he has become argumentative, dismissive, and patronising; it has resulted in their increasing social isolation.
- He has become extremely forgetful since the accident and relies on her. He gets lost easily in the streets of Birmingham and his concentration span is very short, for example they have not managed to watch a film the whole way through since his accident. He has lost his ability to multitask and has lost his interest in, or ability to, organise things and has lost his ability to be decisive. He has also lost his tolerance to alcohol and seems unsteady on his feet, shuffling around the flat like an old man, although he can walk properly when outside.
- Her first witness statement 29th July 2013 was during his treatment with Ms Levett which had resulted in some improvement in his anxiety and temper control.
- Ms Levett had recommended that they move to accommodation which was more suitable. Their, then, flat was a converted loft apartment which was open-plan, so it was difficult to separate herself and her daughter from the Claimant when he lost his temper. Ms Levett believed they needed accommodation providing at least one separate room for him.
- Since the accident he has completely lost his libido and has started to smoke heavily.
- His loss of empathy was exemplified in January 2011 when, following minor knee surgery, Ms Patterson collapsed at home with a massive multiple pulmonary embolism. The Claimant found her lying on the floor, trying to breathe, very pale. She asked for an ambulance but he failed to respond, saying she was fine and needed to get up and have a cup of tea, though eventually he called the ambulance. He did not appreciate the gravity of the situation and displayed poor judgment and a complete inability to perceive the needs of others.
- She made a second witness statement on 22nd July 2014, following his ceasing to work for HomeServe and their moving to a three-bed semi with a large garden. She describes the Claimant's anxiety as having gone, thanks to the psychotherapy, but the cognitive issues, his inappropriate behaviour, disinhibited anger, and persistent tiredness remain. He remains a shadow of his former self. She is supportive of his project to work on motorbikes; he still has a keen business brain, pragmatism, and a very clear design vision. Working alone, to his own hours, will benefit him. Ms Patterson has had to reboot her career to make ends meet.
- She now sees the Claimant as a fragile person who needs help. She describes his continued personality change, exemplified by a period when he was not sleeping well for a couple of weeks. He was yelling constantly at her daughter and her and, after 5 days of this behaviour, she left with her daughter for the night, before going back home.
- His indecisiveness and inability to motivate himself continues, as reflected in his failure to complete work in their previous flat needed to put it on the market.
- He continues to lose his temper in a volcanic way when outside. She gives an example of "car park" rage at their daughter's school and similar losses of temper in relation to service in restaurants where he has embarrassed Ms Patterson in front of her friends.
- Ms Patterson refutes the suggestion that the Claimant's symptoms are, in part, caused by stress arising from him falling out with his brothers and deaths in the family. The changes to the Claimant had already occurred before these events and, in any event, the lack of communication with his brothers is a source of relief and his grief at the loss of his other relatives was not such as to give rise to these symptoms.
- The Claimant had rung her from the roadside immediately after the accident. She was annoyed because she didn't like the legal ramifications of a car crash with the insurance companies, particularly from comments the Claimant had made about Aviva's claim handling and a previous experience in respect of a stolen motorbike.
- In November 2008, after the minor accident, there was a problem with zoplicone which had manifested itself in other bizarre behaviour. After that accident she had insisted that he go to Dr Nasr and change his medication.
- On the day of the November 2009 accident he told her very little, just that he was out of the car and had to go because the fire truck had just arrived. He wasn't particularly angry. He said that it wasn't his fault.
- They next spoke later in the day. He said he had a headache and he wasn't going to go to work. She was relieved when he had gone back to hospital. Her response to the accident was panic, for fear that an earlier bout of depression might return, the trigger for which had been a minor motorbike accident. After that accident, he had removed himself from communicating or sharing or being involved with the family, he had become a morose lump.
- He preferred to drive rather than being a passenger. His father had been a very bad driver. It would be fair to describe the Daimler as his pride and job though it was not a phrase he ever used.
- On the Friday following the accident there was the incident which resulted in him going into a nightclub to remonstrate about the driving of one of their employees and he had left her standing outside. They had both had some drink, he had 6-8 pints, she about 4-5, but they were not very drunk and the incident was not the result of drink.
- He had never suffered fools gladly and could, on occasions, remonstrate, sometimes politely, sometimes less so, but he was always in control, he knew what he was doing, was aware of the consequences.
- She was scathing about the qualities of their GP. It was difficult to get him to do anything, even a reference to the Priory. She would engineer going to see a locum if she wanted a referral, as she had done for her knee. She had always understood the Claimant to have suffered a head injury in the accident from the day it happened. She doesn't know why her husband had not gone to the GP during 2010 with the headaches. By that time their relationship was going through a crisis and she did not regard it as her concern to sort him out.
- They lived in a studio flat, with one bedroom, which was their daughter's. Now they have poorer quality accommodation, but more of it. Three bedrooms, two reception rooms, a garage and a large garden. They rent that for £1000 per month. They rent out their flat at £850 per month; the mortgage on the flat is £350 per month.
- Since the accident, his irritability and temper has been out of control. He has behaved like a loose cannon, unlike before, when there was an element of control about his being aggressive. The quality of his behaviour had totally changed towards her, he is now argumentative, dismissive, patronising, and sneering. This was never the case before the accident. They would now have blazing rows when he would insist he knew where to go in Birmingham City Centre, but was completely wrong and had not remembered where he was.
- She had done all the donkey work in relation to the claim against HP but had not helped in relation to his claim against T-Systems, though she believed he had a good case. By that time they had received a payout from HP, they didn't need the money, and she felt that it wasn't worth the effort.
- She agrees that he was upset about falling out with one of his brothers, Brian, for whom he had more time and patience than for his other two. Her view was that all three of them were unpleasant. Similarly, he was upset at some memories which had arisen out of his mother's death, of the behaviour that she had engaged in.
- The headaches had been present from the time of the accident, so too had been his falling asleep in mid-sentence or mid-conversation, forgetting things, yelling at her, all of this was new since the accident and continued, even though she is beginning to get across to him that he has to temper his behaviour, particularly towards her and her daughter. In 2010 he was in denial about all this and about the fact that his behaviour was out of line. He would say that she was too sensitive, or judgmental. He didn't want to know about her criticisms of him.
Other Witnesses called by the Claimant.
- Matthias Ress works for T-Systems in Germany. He met the Claimant in 2011. He was Mr Ress's boss since the beginning of 2012. They spoke 2 days a week on the telephone and in person once a week.
- During meetings, the Claimant often complained about headaches, sometimes he had to leave the meeting because of them.
- During a two-day workshop in Brussels he had to leave soon after the beginning and did not return until early afternoon. The only thing that will help him is to go to his hotel and lie in a darkened room.
- In 2012, whilst planning a one week conference with hundreds of attendees in Slovakia, he noticed that the Claimant's concentration and word-finding ability would suddenly drop. This tended to precede a headache. The planning was very complex, took several months, and during that time he had to discuss some items at least twice because the Claimant had forgotten details. During longer meetings the Claimant tended to get exhausted quite quickly. This would also precede a headache. On about 50% of the occasions he thinks stress was another factor contributing to his headaches and fatigue. His concentration could fade massively, within an hour he would be struggling and his ability to organise and manage people and concepts would fail. These were not problems you would expect to see in an individual of the Claimant's intelligence operating at a senior level.
- He believes that the Claimant was effective at hiding his problems from colleagues, but he was unable to hide them from Mr Ress. Mr Ress explained to the Director of the company that the Claimant had terrible headaches but did not disclose problems with his poor memory, concentration, or other symptoms. The Claimant was effective in short bursts, but not able to sustain it for any period of time. He rapidly fatigued and ended up with a headache and had to stop. He had noticed that the Claimant could be short tempered but he had a method of combining it with humour on occasions.
- Lawrence Stuart Siegel is the Claimant's father; they speak frequently on the phone. The Claimant last visited New York in April 2010 after his mother's death. Mr Siegel's last trip to England was October 2011.
- Since the accident Peter has experienced short-term memory loss. He often forgets phone conversations which took place a day or two before. He would call in the evening, forgetting what they had discussed in the morning and would wander off the subject. He now has to think about retrieving information which previously he would recall immediately. He has observed the Claimant's inability to multitask, for example caring for his daughter and maintaining a discussion of the day's events. He has a much lower level of energy and has reacted with flashes of high temper to normal distractions. Mr Siegel now notices his son has a high degree of indecisiveness about everyday decisions, which was not an issue before the accident. The Claimant tends to exhibit his emotions without any subtlety and complains of severe headaches and dizziness; these are all new symptoms. He seems also to have less financial responsibility and has shown a high level of anxiety whilst a passenger in Mr Siegel senior's car.
- In cross-examination, he agreed that he had visited the UK in November 2013, had spent half his time in Birmingham and half of his time with his son in Edinburgh. Ho was not working at the time but, Mr Siegel thought, he was about to start a job.
- As a boy he had been very bright, as a teenager he had had a short episode of psychiatric care following taking valium pills, but he did not hang out on the streets. He undertook work with his father on construction jobs and managed to assert himself in that context.
- He never had any reason to doubt the truth of what the Claimant was saying when he was a boy; he had three brothers to keep him honest. Currently, the Claimant and his brothers don't speak; this is since their mother's funeral in April 2010. They had always eaten together when at home, the atmosphere was often boisterous but the Claimant had become very short-tempered over things which, before the accident, he would have let slide by. He took literally things that were said in jest.
- The Claimant had stayed in New York for about 3 weeks after his mother's funeral, delayed by the Icelandic volcano eruption. He was supposed to be helping with sorting out his father's affairs, probate and the like, but in fact his wife Amber was more helpful than he was as he'd forget what he was doing. Prior to the accident he always enjoyed driving with his father, who accepts that he drives quickly. His father noticed that when, after the accident, he was driving the Claimant back to the airport, a distance of some 60 miles, he was very apprehensive, very nervous about not stopping at red lights and going over the speed limit.
- Andrew Guile is employed by HP. At the relevant time he worked on the Aviva account. He has known Peter since early 2007 when they both worked at HP; the Claimant joined his team and the Claimant worked for Mr Guile for approximately 9 months during 2007 2008. During that period he was asked to mentor the Claimant after he had been on an "architecture certification course" run by Mr Parry who was concerned about the Claimant's behaviour on the course and asked Mr Guile to coach him on his manner and relationships with people. The Claimant had informed Mr Guile that he was frustrated that the course was very basic and took him away from issues facing them on the Rolls Royce account. Mr Guile was to mentor him for 12 weeks but his manner improved markedly so he was removed from the mentoring programme within a few weeks and no further concerns arose.
- He describes the Claimant as a large, imposing, boisterous, straight-talking American, which were the characteristics he needed in his role in 2007 and, again, on the Aviva contract. He was required to deal with difficult situations requiring change where people didn't want to embrace change, but he never had any issues with his attitude, commitment to the job, or his focus on the client's interests.
- Tensions arose within the team from time to time. In 2009 a complaint was made about the Claimant by an HP colleague about an email the Claimant had sent which the complainant thought was patronising. It became clear to Mr Guile they could not work effectively together, a clash of personalities. The other colleague was moved from the Aviva account as the Claimant was much more valuable to Mr Guile at the time.
- Prior to the accident, the Claimant was Mr Guile's deputy. He had no concerns about the Claimant's ability to conduct himself appropriately and professionally, he had very high standards and was uncompromising in ensuring the team met those standards. It could be said he didn't suffer fools gladly, but that was not a negative.
- After the accident, Mr Guile noticed an immediate change. It was as if a button had been pushed and his temper and capability went overnight. He developed problems controlling his temper, became unreliable, and started dropping the ball, missing deadlines. As soon as he returned to work in January 2010, he became a liability in his dealings with the client. So Mr Guile acted swiftly to remove him from that account in February 2010. In addition, Mr Guile was worried about the Claimant's health, he appeared shattered and looked unwell, would frequently fall asleep in meetings, his eyes seemed to lose focus during conversation. Mr Guile had said to him he had come back to work too early and that he would kill himself if he carried on the way he was doing.
- In cross-examination Mr Guile said he was the Claimant's day-to-day, immediate, functional, manager on both the Rolls Royce and the Aviva contracts. Mr Parry, by contrast, was his line manager but not his day-to-day manager; Mr Parry would only see the Claimant once or twice a year for appraisals.
- Prior to the accident the Claimant had always delivered for Mr Guile what he required. It was after the accident and upon his return to work that the client, through their representative Mr Whitehead, expressed concern about the Claimant. He was becoming abusive and disruptive at meetings, more aggressive than was acceptable and was not delivering what Mr Whitehead had asked him to do. Mr Guile had observed this change as well. The Claimant had no tolerance, on occasions in meetings he would lose focus, his eyes would roll, and he would fall asleep. He stopped delivering for Mr Guile and when he was taken off the Aviva contract there were a number of uncompleted activities.
- Mr Guile well understood that having taken him off the Aviva contract the Claimant would be very angry with him for doing so. He had done so both for his health and because of the damage he was doing to their relationship with the customer. He accepted that this would affect the way others within HP viewed him, as Mr Guile was well-respected and if he did not want him on his team questions would be asked why.
- Alan Weaver lives in New York. He and the Claimant were at college together. Mr Weaver is a school teacher. He has not seen the Claimant since the accident but they speak on the phone every couple of weeks. Since the accident, Mr Weaver has to remind him of what they've spoken about on previous occasions and he has to repeat things. The Claimant is not what he used to be like. He has been told by the Claimant that he now finds it difficult to associate names with people he has met at events; gets tired and has to sleep longer in the mornings. He can no longer stay up late at night and work early in the morning. This has given rise to frustration.
- He did not give evidence live and was not cross examined.
- Catherine Hibberd-Little is a primary school teacher and has known the Claimant and his wife for 13 years. She speaks with, or sees, the Claimant once or twice a month. Before the accident he was loud, brash, highly sociable and personable, confident, self-assured, enjoyed socialising, had a sharp sense of humour, cheerful and friendly, patient but prepared to speak out when necessary, had good judgment, would never offend anyone, and had a high tolerance to alcohol. Since the accident he has undergone a change in personality. He can upset other people or snap at them easily, yet rarely realises he has done so. He will come out with comments that will offend. He seems less tolerant but will avoid confrontational situations because he has lost self-confidence. He does not have the same level of mental agility as before.
- He is still highly intelligent but it is as if his brain doesn't work as quickly as it used to, except in short bursts when he is not tired. He now has difficulties with short-term memory, forgets recent conversations, though only a few hours before, though his long-term memory appears unaffected. She has regularly seen him lose his entire train of thought.
- Since the accident it takes him longer to respond. Previously he was speedy, quick fire. He will now become confused and lose his train of thought. He is easily distracted, can become preoccupied with something tiny or irrelevant. He has difficulty concentrating if there is another conversation taking place nearby or he is in a noisy environment.
- One of the biggest changes is fatigue. He always had plenty of energy, would be up late and function early in the morning. He now retires a lot earlier than previously, tiredness can come on quite suddenly without warning and he will remove himself from the social situation quite abruptly. He now relies on others to organise things but then tries to take over and gets frustrated. He is less able to deal with pressure. He is poor at making decisions. He now dithers whereas before he was self-assured. He will sometimes argue the point over something quite unnecessarily. He has lost his finer social skills and the ability to filter out certain comments. He frequently complains of bad headaches. He is more generous with his money than he used to be.
- In cross-examination she said she first met the Claimant in 2001 and knew him for 3-4 years. They then lost touch until September/October 2009. They used to get together about 4 or 5 times a year, sometimes in Birmingham and sometimes in London. Prior to his accident she had never seen him depressed or stressed and was unaware of any health problems. Since the accident his tiredness would come on suddenly in the middle of a conversation. He would not be with you, he would rub his eyes, excuse himself and end the evening abruptly. Their contacts would sometimes be for an evening or, occasionally, for several days, the longest being a festival of five days.
- Trevor Hibberd-Little has known the Claimant for 13 years. They speak about once a month on the phone. Since the accident, his memory has obviously worsened. He is easily distracted from the task in hand and is now easily angered by other people's actions though before he was very outspoken. He becomes tired very quickly, he finds organising events quite challenging, reacts under pressure in a different way to before, he is quite agitated and snappy, he suffers from headaches on what seems to be almost a constant basis, coinciding with his levels of fatigue, he becomes very anxious in public places.
- In cross-examination, he agreed with his wife that they got in touch with the Claimant and his wife again after a few years break in September/October 2009. After the accident he next saw the Claimant several months later. Prior to the accident he had always been outspoken, truthful, and honest to his friends. Since the accident, when he has a headache he sits quiet and then goes to bed.
- Emily Cox has known the Claimant and his wife for about five years; her daughter is Juniper's best friend. She sees them regularly socially. Before the accident, Peter was pleasant, easy going, a quick-thinker, clever, funny, and driven. Since then changes include his short-term memory, for example he completely forgot where she lived, or that she had moved, when driving her home. He would drift off in conversation as if he has forgotten what they were talking about whereas, before, he was on the ball. He seems tired a lot of the time, he gets upset in crowded rooms, has to get out and get away. He will tend to shy away from a situation as if having lost confidence to articulate calmly what he wants to say. He is now quite inept at organising himself and relies heavily on his wife; a contrast from before the accident. He makes very inappropriate comments and is thoughtless in this respect. He is abrupt and has no sense of restraint, for example discussing her partner's salary in inappropriate locations. He also gets ruder when he's had a glass or two of alcohol. She was not aware of this before the accident. He suffers from frequent headaches, will mention he is feeling sick, and he will take himself off to a quieter place.
- She first got to know Juniper Siegel when she and her daughter were first at school in 2008. They have been best friends ever since. She will see the Claimant at the school gates 2 or 3 times a week on the school run and, occasionally, at birthday parties. Their contact is mainly via the children. He told her about his headaches and of feeling sick and not being able to cope with lots of people. She was not aware of him having medical problems before the accident.
- Lloyd Patterson is the Claimant's father-in-law. The Claimant's behaviour and personality have changed since the accident, based on his visits to the Claimant and his daughter and frequent phone calls. He has visited them 6 times since 2003, spoken with the Claimant over the phone many times. The Claimant visited him in Australia for about a month in April 2012.
- The changes in Peter became most apparent when Mr Patterson visited them in January 2011. This arose from the pulmonary embolism suffered by Amber Patterson. He stayed for about a month, the Claimant's behaviour was strange, he dressed and, sometimes, behaved socially inappropriately. He would start going on about something in a strange high-pitched voice but didn't realise he was doing so. He would do things without any planning and developed a degree of paranoia. On one occasion, he arrived at a restaurant dressed bizarrely, was very rude to staff and was a cause of great embarrassment. Other times he would blurt out rude comments without seeming to realise it. He became cross a lot and would shout, particularly at his daughter. He would also have unintentional micro-sleeps, he would nod off without any warning or reason. That happened a dozen or so times, sometimes part way through a conversation. He also constantly complained of tiredness. He would need to lie down. He was having a lot of headaches. They got through a lot of boxes of painkillers. He would repeat things which he had already told Mr Patterson and seemed to spend much more on impulse luxury items.
- After the accident, he next saw the Claimant in January 2011 when he visited his daughter after her operation and pulmonary embolism. Prior to the accident he was only aware of the Claimant having gastric problems; he never said he was depressed.
The Defendant's lay evidence
Lester Pummell (the Defendant)
- Lester Pummell made a statement on 28th October 2014 concerning the accident. He was driving behind the Claimant's vehicle. Both were stationary in the queue of traffic. He mistakenly believed the cars ahead of them were moving on. He moved forward and collided with the Claimant's vehicle. There was damage to both vehicles. The Claimant got out of the car and spoke to him, he did not appear to be injured, he was very frustrated and angry. Mr Pummell got the impression that the car was the Claimant's pride and joy. The police attended the scene and he confirmed that the photographs represent the state of the vehicles after the accident. He did not think that he had got beyond first gear but his bonnet was crumpled and a fuel pipe was severed so he couldn't drive.
- In cross examination, he agreed that he was now trying to remember an event almost 5 years ago. He could not recall how long after the accident he got his car back. He wasn't aware that his seatbelt tensioner needed to be replaced. He was unaware that paramedics had attended the scene. He has no qualifications in accident reconstruction and, if the paramedic's evidence estimated the speed at the time of collision at 20mph, he wouldn't disagree if he had training in accident reconstruction. He found it very difficult to put a speed on how fast he was travelling.
- John Waterfield is an account chief technologist employed by HP. He first came into contact with the Claimant in January 2011 when he became the Claimant's line manager in succession to Peter Parry. He had a discussion with the Claimant on 4th January 2011. It included a discussion about his accident and his relationship with Peter Parry, whom the Claimant criticised. He indicated he was taking legal advice intending to seek compensation from HP on the basis that they had failed to respond to and cater for his injuries following the accident. Mr Waterfield discussed this with his then manager, Mr Caddy, and with HR, Ms Ben Fredj.
- His impression, initially and during the month thereafter, was that the Claimant was not struggling with his memory or incapable of working. He was coherent, capable, and lucid. He took little time off work sick and worked on the AON account. He was contributing well with good proposals. It was only later that matters deteriorated. This deterioration coincided with the outcome of his previous performance review which Mr Waterfield upheld, though dependent upon the pending OH review.
- Mr Waterfield was aware of the Claimant declining to give approval to be seen by the OH team because he said they did not have the appropriate medical skills. Eventually, there was an appointment with OH which they cancelled at the last moment. He accepts that was not well dealt with by HP.
- A significant factor in the Claimant's deterioration appeared to be that Mr Waterfield would not sanction voluntary redundancy which the Claimant was seeking. In fact, Mr Waterfield was recruiting staff which meant he needed to retain the Claimant. The Claimant reacted badly to that refusal and researched examples of others who had been given voluntary redundancy in what he said were similar situations. In March 2011 things got worse as he failed to engage with Occupational Health.
- In cross examination Mr Waterfield said he is now 57. He will retire when his pension arrangements suit him, between 60 and 65. When the Claimant first presented him with a problem on 4th January 2011, Mr Waterfield's first instinct was to go straight to HR. In fact, from the records he checked, the Claimant only had 2 days off sick in January 2011. He worked from home and was able to delegate.
- He agreed that during 2009-10 the Claimant had been one-third working with Clients, one-third on the bench, and one-third off sick. Mr Guile had acted quickly removing him from the Aviva contract.
- He wasn't aware that Mr Parry had offered the Claimant EOW in 2010. He agreed that the Claimant was entitled to be irritated with HP for the failure of OH to respond. Mr Waterfield took the view that it was clear that he was looking for compensation from HP from his email of 4th January 2011 so as to put Mr Waterfield on guard and make sure their support was formal and correct.
- He was aware not only that the Claimant was declining to allow OH to see his medical reports, which were subject to legal privilege, but he was also reluctant to see a nominated OH doctor who did not know about head injuries. He felt he had to perform the review of the Claimant's 2009-10 performance review without waiting for the OH reference to bear fruit because further delay would imperil the plan to improve his performance envisaged in his P- grading.
- In fact, Mr Waterfield considered that on 9th February 2011 the Claimant put forward a good proposal and started to implement it. His skills were needed by the business and he did not want to lose him.
- For the first month and a half of his dealings, the Claimant was working normally but in March to April he was more challenging. This arose from two triggers. First, Mr Waterfield's refusal of EOW and second his upholding Peter Parry's performance review.
- Peter Parry joined EDS in 2001 and retired in January 2014. He met Peter Siegel early in his employment by EDS. He was not an easy person to place. He was good technically but lacked softer skills, had a very abrupt manner. Eventually he was appointed to a role on the Rolls Royce account where he worked with Mr Guile, with whom he developed a good working relationship.
- Mr Parry ran courses for employees as part of the architecture office development. In 2007, Mr Siegel was invited to one but had to be reprimanded. He was continuously arguing, contradicting, and unpleasant to those present. In the months before his accident Mr Parry got a series of emails from other leaders at HP complaining about the Claimant's attitude to their teams. He was disruptive in meetings, arguing with other members of the wider team. Mr Parry spoke with Mr Guile, both Mr Guile and Mr Siegel were working on the Aviva account. This was around September 2008. Mr Guile indicated he would have words with Mr Siegel and try to resolve the problems with other employees. From Mr Parry's perspective, prior to the accident, he had discussed with HR the possibility of putting the Claimant on a performance improvement plan but the accident intervened.
- Post accident, Mr Siegel had a number of false starts, returning to work then going off sick again. During one of the false starts Aviva indicated they did not want him retained. After that, HP had a problem with another account, AON, and Mr Siegel was asked to assume the role of architect on that account. Mr Parry said he had numerous conversations with him at about that time and saw no changes in his ability to deal with complexities, his reasoning and responses, which remained sharp and in line with his ability pre-accident. He remained equally cogent and lucid and Mr Parry did not notice any loss of short or long term memory. The initial feedback from AON was positive. In October 2010 Mr Siegel emailed Mr Parry indicating that his barrister thought he had sustained a brain injury and that he was having more tests. This might explain some of his issues over the previous year. Mr Parry sent this to HR. In November 2010 Ms Patterson told Mr Parry that they had a diagnosis of his problems and that he had been diagnosed with Crohn's disease. Eventually, AON tired of the Claimant's absences and he was removed from that account. Mr Parry first knew about this claim on 8th November 2014 when he received a witness summons. His witness statement is dated 11th November.
- In cross-examination he confirmed that he retired at the age of 60. He agreed that in September, or October, 2010 the Claimant had asked about the voluntary redundancy scheme and his response was that, if voluntary redundancy came up he would keep it in mind. He sent a spreadsheet showing calculations of previous voluntary redundancy schemes. At the time there were various EOW schemes in HP because they wished to reduce the workforce but there were none in respect of architects such as the Claimant.
- Mr Parry said that at the time of his retirement his global remuneration package was £150,000.
- He agreed that the Claimant fulfilled the need, in the role he played, to deal with very demanding clients. Toughness of mind was an attribute for the role.
- In respect of the difficulties at the training event, he was not aware of the Claimant being at the event beyond the first day. The Claimant had made it very clear that he did not agree with its premise. Somebody had complained to the Claimant's then line manager Patti Thompson. She had a word with the Claimant.
- The Claimant underwent 3-4 weeks mentoring. There were no technical issues and in June 2009 the Claimant joined Mr Parry's team, though he remained working on the Aviva contract reporting to Mr Guile on a day-to-day basis. Throughout 2009 until a few weeks before the accident there was no difficulty about his temperament nor his technical abilities. About a month before the accident an issue arose, which was a serious disagreement between the Claimant and an engineer in his team, Mr McCormack. Mr Parry had delegated Andy Guile to deal with it. He said it was six of one and half a dozen of another and had removed Mr McCormack from the Aviva contract. Andy Guile had asked Mr Parry to let him deal with it and he had. There is nothing in his statement to this effect. On 6th September 2011 Yvonne Ben Fredj of HR had written an account of a conversation with Mr Parry in which he had said that he couldn't truly recall the actions around the Claimant coming out of the Aviva contract and its timing and suggested that she speak to Andy Guile who knew more about his daily activity as they worked together in Aviva. Nonetheless, Mr Parry maintained that there had been difficulties in respect of another individual who had complained, through the same line manager as had Mr McCormack and that Mr Guile had been minded to remove the Claimant from the Aviva contract before the accident. Mr Parry was unable to point to any emails evidencing any of this.
- He confirmed that, after the Claimant's return to work and after some false starts Mr Guile spoke to him about having received strange messages from the Claimant and he was thereupon removed from the Aviva contract.
- He agreed that, on the face of it, an email of 10th July 2009 from the Claimant to the members of his team, apologising for being a bit short earlier, pointed to his empathy.
- Mr Parry said that, between February 2010 and October 2010, when he was moved to some work on the AON contract, the Claimant had only done the equivalent of one day's work working on the Lloyd's contract. He found it difficult to place the Claimant on an account where he would have no contact with the engineering team, with whom he had fallen out, and which would stretch him. Therefore he accepted that, during the period up until October 2010 the Claimant was not under pressure, was not working to deadlines.
- On 25th October 2010 he had received an email from the Claimant referring to the possibility that he had sustained brain damage in the accident and that might be an explanation for some of the things that had happened in the last year. He had passed this email on to OH but did not get any response from them as they had, apparently, lost his number.
- Mr Parry completed the appraisal for the year 2009/2010, dated 31st October 2010. Its conclusion was as follows:
"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.
- As for the AON contract they had a number of meetings and telephone discussions in which the Claimant displayed the technical characteristics and sharpness which Mr Parry had experienced before the accident. These discussions, however, did not last longer than an hour. The real difficulty, as far as AON was concerned, was his absences due to illness and this informed his decision to remove the Claimant from that account.
- Ms Ben Fredj is a Human Resources employee of HP. She first encountered the Claimant in January 2011. She was trying to get him to liaise with HP's Occupational Health team. He was unwilling to do so. He indicated that the medical reports OH needed to see were covered by legal privilege and the Occupational Health team did not have the expertise to understand the nature of his problems, as evidenced by the Claimant's email to her of 12th April 2011.
- Ms Ben Fredj had been involved in HP preparations for the litigation in the United States brought against HP by the Claimant. In that connection she said in her witness statement that he was taken off projects before the accident because he was upsetting clients and HP colleagues. She illustrates this by the email of apology already referred to and by the aggressive email sent to Andrew McCormack on 29th July 2009. That resulted in an email from Andrew Guile dated 7th October 2009 to the two managers, respectively, of the Claimant and Mr McCormack, namely Peter Parry and Steve Nicholls. In that email he stated that it was six of one and half a dozen of another but was threatening key deliverables on the account and there was a clash of personalities. He had no issues with the quality of work produced by either of them. His view was that the least impact was to release Andy McCormack from the account.
- On 6th September 2011 she sent an email in connection with the United States litigation concerning the circumstances in which the Claimant was removed from the Aviva contract. She records Peter Parry as having said that he did not truly recall the actions around his coming off Aviva and its timing. He had suggested she speak to Andy Guile who knew more about his daily activity as they worked together on Aviva. She had such a conversation and found Mr Guile had a very clear memory of the events. She then set out the sequence of events leading to the decision, prompted by Aviva, to remove him from the contract, about a couple of weeks after the accident. There is nothing in that account relating to any decision being made prior to the accident. On the contrary, his removal from the Aviva contract occurred in the context of the Claimant insisting on coming back to work, Mr Guile asking the Claimant if it was okay, the Claimant saying that he was not feeling well but was still doing his job. In the end, the client went to Mr Guile and said that the Claimant was not able to do his job and they didn't want him any more on the account. Mr Guile asked the Claimant to close down his role on Aviva, go home, and get better. Nonetheless she asserted in her evidence, as had Mr Parry, that her understanding was that the decision to remove the Claimant from the Aviva contract had been made prior to the accident.
- Ms Ben Fredj's direct contact with the Claimant included a conversation on 6th April 2011. She had sent the Claimant a transcript of what was said, recording the main points discussed. He had promptly sent her extensive comments, taking issue with her account of the meeting. That document indicated that he had been taking notes but Ms Ben Fredj said that his short-term memory, as reflected in his response to her email, was 'amazing'.
- Dr Allder, instructed for the Claimant, and Professor Swash, for the Defendant, have prepared a joint report setting out their areas of agreement and disagreement.
- They agree that he was involved in an accident on 16th November 2009. They note damage to the rear of the Claimant's vehicle. Professor Swash comments 'this seems to reveal compression of the rear of the vehicle'. They agree it might be helpful to know whether or not the airbags were deployed. Following the accident, they agree, Mr Siegel has experienced difficulties in employment.
Traumatic brain injury
- They agree there was no scalp laceration or bruising of the scalp caused by the accident. They note a conflict in the evidence whether or not he lost consciousness. He told Dr Allder that he did, but stated to Professor Swash that he could not remember anything for 2 weeks from the time of the accident. The ambulance staff and hospital emergency department staff concluded that he had not lost consciousness.
- Dr Allder's opinion, that he had suffered from traumatic brain injury, is based on two factors: the mechanism of injury ; and the fact that loss of consciousness is a poor guide to the presence of a 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.
- Professor Swash, based on the ambulance evidence, the A & E records, the absence of evidence of trauma to the head, and the normal CT brain scan, is of the opinion that the Claimant did not lose consciousness and that there is no evidence he suffered a significant traumatic brain injury. Professor Swash regards evidence of head injury, loss of consciousness, duration of post-traumatic amnesia, brain imaging, and the pattern of development of subsequent symptoms as important in determining whether there has been a significant brain injury. No one of these should be taken out of context from the others. There is a long history of clinical and scientific research in the field of traumatic brain injury. Contextually relevant research should always have greatest significance. In this case that pertained to road traffic accidents. The forces involved, and protective factors at work, differ considerably from sports and other forms of injury.
- The Claimant described to both experts that he had headache and tunnel vision in the aftermath of the accident as well as neck-pain and dizziness.
- Dr Allder's view is that both the headache and spectrum visual symptoms are neurogenically mediated, suggestive of a direct brain injury. These are two classic neurogenic symptoms. The Claimant's memory disturbance is consistent with post-traumatic amnesia. He emphasises the entry in the hospital notes on 26th November 2009 relating to his ongoing amnesia.
- Professor Swash says it would be remarkable for post-traumatic amnesia of two weeks duration to develop following a non-concussive accident with no concomitant evidence of head injury unless it was of non-organic origin. In November 2008, Mr Siegel had said to Dr Nasr that he had lost memory for several hours before and after an accident although he recounted events up to the time of the accident in November 2009.
- They agree that, following the immediate and acute phase, the Claimant has developed a spectrum of ongoing clinical symptoms. They were described in the same way to each of them and substantiated by descriptions in witness statements. They interpret these symptoms differently.
- Dr Allder says the neurological and cognitive symptoms are consistent with a DAI injury. The cognitive deficits most associated with DAI are slowed processing speed, and disruption of memory and executive functioning. These are core cognitive deficits described by Mr Siegel.
- Dr Allder says a normal CT scan is consistent with the presence of DAI. Attempts to observe lesions on currently available imaging have proved disappointing. The explanation in the literature is that the clinical deficits relate to a "more general compromise of the integrity of underlying white matter which may connect topographically distinct regions". This review of the utility of conventional imaging in patients with DAI states "historically the widely distributed microscopic nature of the axonal pathology in DAI rendered it essentially invisible with conventional brain imaging. As such, DAI was often a diagnosis of exclusion for patients with persisting symptoms relating to head injury but no radiological findings. In some patients, minor changes in the white matter have been found with conventional imaging techniques but, likely, reflected associated pathologies such as micro-bleeds rather than actual axonal pathology."
- Dr Allder also states that Mr Siegel also suffered a traumatic psychological syndrome which has now been treated.
- Professor Swash interprets the symptoms as of psychological origin. They have been managed by psychotherapy with a fair measure of success. There is no evidence to support a diagnostic suggestion of DAI since there is a lack of evidence of a significant blow to the head. There is lack of support for any description of apparent loss of consciousness and there is a normal CT brain scan. Absent these features, it is unlikely there was a "diffuse injury" to the white matter of the brain. To suggest that such injury is "undetectable" introduces a note of speculative assertion which is unacceptable.
- Dr Allder has concluded that the immediate and chronic symptoms are consistent with a severe brain injury which has led to diffuse axonal injury. In the longer term, this will mean that the neurogenic and cognitive symptoms will be permanent and Mr Siegel is at risk of post-traumatic epilepsy and dementia but not a reduced life expectancy.
- Professor Swash opines that the prognosis is for neuropsychological therapy. There is no organic evidence supporting a traumatic causation for Mr Siegel's ongoing complaints.
- They agree that the surveillance video evidence shows Mr Siegel behaving in a way that appears quite "normal". Professor Swash agrees that video evidence is always limited by its passive nature but considers that this is evidence that Mr Siegel can deal with the world around him with ease and competence, notwithstanding the limitations of the evidence.
Dr Allder's evidence
- Dr Allder examined the Claimant on 15th May 2014 and reported on 13th July 2014. Mr Siegel gave an account of patchy recollection of the immediate aftermath of the accident for about 2 weeks when his continuous memory returned.
- His acute symptoms were sciatica down his right leg, tingling in both arms, and neck pain, an episode of tunnel vision and headache from the front-right to the back-left of his head. During the first two weeks he had clear cut symptoms of memory difficulty and troublesome nausea, anxiety and fear.
- During the sub-acute phase, one month to one year after the accident, his sciatica and tingling improved, he had some difficulty with smell, formally tested in October 2010. His headaches have persisted. They are very different to migraines he had prior to the accident. His sense of nausea settled, but he developed clear-cut episodes lasting several days, involving vomiting and admission to hospital with dehydration. He has developed sleep disturbance and cognitive symptoms, some of which he was not aware of, but his wife and colleagues were. He has noticed that his personality has changed and has lost his confidence.
- He has noticeable problems with working memory, is entirely reliant on using lists. He has lost his decision making skill and his capacity for intuition and social self-control. He has problems with episodic memory, he is unable to remember names and tasks. He has not experienced flash backs but has marked anxiety and avoidance at being a passenger in a car.
- Chronic symptoms, beyond the one year period, include headache, marked fatigue, insomnia, cognitive symptoms, working memory difficulties, anxiety and avoidance and irritability, none of which he had prior to the accident.
- The records perused by Dr Allder include the ambulance service records 16 November 2009: on examination no loss of conciousness. The hospital trust Clinical record on 16th November 2009 at 17:47 which notes: "rear end shunt 30mph, complaining of headache gradually getting worse, tunnel vision, hazy vision".
- At 19.15 the records show he was sat in a car in traffic. "He was hit from behind by a moving car at approximately 25mph at 14.00 today. Ambulance on call happy to send patient home. Has since felt unwell, tunnel vision, headache". He was admitted for neuro observations overnight. At 11.30pm he was on his mobile phone saying he was bored out of his mind. On the following morning, at 10.20am, he was sent home with head injury advice.
- On 26th November 2009 he was seen again having re-presented at the emergency department. The Head Injury Pro forma says "date and time of injury 16.11.09, GCS 15, mechanism of injury RTC one week ago, transient loss of consciousness, admitted to A&E bed over night for neuro observation. Discharged the following day with information. Increasing headache and visual blurring since then". The record of examination also includes "loss of consciousness: yes; how long?: seconds, post-traumatic amnesia: yes". On 26th November 2009 the clinical records at 10.40 a verbal CT report of no abnormality. Amnesia was discussed with the patient. He was sent home with a prescription and to take time off work.
- Dr Allder reviewed the medical reports obtained in this litigation in considerable detail before turning to his opinion.
- Dr Allder opined that Mr Siegel sustained a head injury during the accident. His immediate and acute symptoms were consistent with the presence of an associated brain injury: visual disturbance (hazy, blurred, and tunnel vision), headache, dizziness, nausea and memory disturbance. In his opinion the lack of other significant physical injury is not incompatible with this diagnosis. The classification of his brain injury as "severe" is based on the following factors:
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.
- Mr Siegel was not prospectively assessed for the presence of Post Traumatic Amnesia ("PTA) using an appropriate tool. This is unfortunate as significant PTA is often detected in patients with otherwise normal Glasgow coma scores, no overt evidence of confusion and normal brain imaging. The duration of PTA beyond 24 hours fulfils the criterion of a "severe" classification. The clinical records on the date of injury note the presence of PTA as well as the notes on the 26th November. Mr Siegel did not exhibit symptoms suggestive of a significant coexisting severe acute stress response, which can cloud a precise assessment of PTA.
- Functional amnesia, as described by Professor Swash, describes amnesia which appears out of proportion to the injury sustained but tends to produce a blanket memory loss without interspersed snapshots of vivid recall, which is inconsistent with Mr Siegel's account.
- Mr Siegel described visual disturbance during the acute phase of the injury, hazy, tunnel, and double-vision. This spectrum of visual disturbance with brain injury is well-described and is compatible with it.
- The presence of the neurogenic physical and neuro-cognitive symptoms, which are acute, sub-acute, and chronic, suggest a strong probability that Mr Siegel suffered a significant subtle permanent closed brain injury, secondary to diffuse axonal injury. Those symptoms are: problems with smell and taste, hearing difficulties, visual symptoms and light sensitivity, headache, fatigue, intolerance to noise, sleep disturbance, personality changes, memory and impulse control problems, wide ranging cognitive symptoms.
- DAI is caused by a shearing injury to the brain tissue as the brain moves forward and backwards rapidly within the skull. The correlation between the chronic physical and cognitive symptoms from which Mr Siegel suffers and DAI is well-established. In such cases standard MRI images are typically normal.
- He referred to an article in the Neuroscientist in 2000 by Smith and Meaney in which there is an illustration demonstrating diffuse brain injury resulting from an inertial force. The commentary says
"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".
- Later on in that article he refers to the following passage:
"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."
- In cross-examination he indicated that he was aware of the Claimant's pre-accident medical history and had considered it. He emphasised that the initiating event was not concussive but was the sudden acceleration of the brain. In the majority of cases the CT and MRI scans are normal. The brain undergoes linear acceleration, forward and back. It was the cluster of symptoms persisting in the Claimant which, given its temporal correlation with the accident, was a classic of this condition. The November 2008 accident, followed by retrograde and onward amnesia for a period just short of 24 hours was, in his opinion, due to the impact of the zoplicone which the Claimant was taking at the time.
- Whilst it was not ideal to have his historical account of his period of amnesia some time after the accident, it was possible to achieve a proper account for up to one year after the accident, which is when Ms Levett took her history.
- Even if the airbag in the car had been deployed, its deployment would have been too late to stop the injury which is due to the sudden and rapid acceleration rather than the distance the occupant of the car moves forward as a result of the shunt.
- A PTA can arise whether or not there is identified confusion initially after the accident. Confusion may not be picked up by the junior doctor seeing the patient in A & E. He has given evidence in 168 cases of head injury, 13 of which were concerned with DAI. In his judgment, the marker of DAI is the measureable change in cognitive function experienced by the Claimant. He would pay particular attention to what those around him, including his family say, as they would be the most likely to notice confusion.
- In re-examination he referred to his reference in his report to the pre-accident history in commenting that the only pre-disposing factor was an episode of low mood and anxiety that was successfully treated. He had derived that reference from the medical notes.
- In his opinion, the presence of PTA for over 24 hours was the key to the diagnosis.
- Impairment of smell was a marker for brain damage as the mechanism causing the damage is the same.
- He emphasised that the cause of DAI is not directly concussive but is the acceleration of the brain which may result from a blow but may result from circumstances which arise in a road traffic accident.
- During PTA a patient can act logically, even though not laying down complete memory.
- Professor Swash examined the Claimant on 9th October 2013 and reported on 27th November 2013. He recorded that Mr Siegel told him that he stopped at a red traffic light, some two hundred yards from the hotel but subsequently has no recollection of events for some two weeks. It was not clear how much of what Mr Siegel then described was recollected or was told to him. He said that he did not know if he had struck his head. He described his range of symptoms. Professor Swash noted the ambulance records as describing a rear-end shunt with no loss of consciousness, GCS 15/15, the airbag had been deployed and the seatbelt was fastened and undamaged. The total impact speed was described as 20mph.
- Reviewing the GP records, Professor Swash describes, in November 2008 a consultation with Dr Nasr following a car accident. The Claimant had lost his memory for several hours following the accident as well as a few hours before the accident. He had hit one or two parked cars, remembers talking to one of the owners of the cars but apart from that had no recollection from the night before until 4-5pm on the day of the accident. Professor Swash notes this episode of retrograde and post-accident amnesia associated with a trivial injury without head injury as suggestive of psychogenic amnesia not consistent with traumatic brain injury.
- Professor Swash reviewed the witness statements and the edited video diary. He opined that the accounts of the accident suggest the airbags were deployed, the seatbelt was intact, no head injury was noted, there was no description of injury to the head in the contemporaneous records and the emergency staff did not consider he had lost consciousness.
- Professor Swash stated that the statement that "he has no recollection of events for some two weeks after the accident" seems surprising given the nature of the accident, but it is a consistent complaint. Such a long duration of PTA is remarkable following an apparently minor event without loss of consciousness. The possibility that it is factitious needed to be considered. Alternatively, it might have a purely non-organic psychiatric explanation as part of his subsequent disturbed mental state, given his previous mental problems.
- In the context of a minor rear-end shunt with protection by the internal safety mechanisms within the vehicle, Mr Siegel appears to have suffered a decline in neuropsychological health of a surprising severe nature. He describes a host of neuropsychological disturbances including fatigue, difficulty multi-tasking, loss of memory, loss of libido, anger (often inappropriate), loss of get-up and go, and low mood. He also describes tunnel vision and headache, which is the most significant of his ongoing symptoms.
- Professor Swash opined that the airbag being deployed suggests the collision was not a minor event but, given there was no head injury, one would not expect persistence in continuing symptoms extending for years. Professor Swash noted that it was striking that Mr Siegel has a past history of mood disturbance, amounting to depressive illness, with complaints of tunnel vision and headache before the accident which were treated psychologically by Dr Nasr and with medication.
- He notes that Mr Siegel developed tunnel vision and headache following the 2008 minor accident and that he had impaired memory before and after that accident, which appeared to Professor Swash to be characteristic of psychogenic amnesia. Tunnel vision is a non-organic complaint, implying anxiety or disturbance of mood.
- Professor Swash says that tunnel vision and headache of catastrophic severity, without evidence of head injury or loss of consciousness, does not suggest an organic basis. The plethora of ongoing neuropsychiatric symptoms is difficult to understand in the context of an apparently minor, non-concussive injury. There must be doubt whether the Claimant's symptoms can truly be related to a brain injury. In Professor Swash's opinion, they have a psychological basis.
- On the suggestion of a brain injury with diffuse axonal injuries He says there is no evidence for a diagnosis of brain injury with DAI by reference to the injuries sustained or the clinical, ongoing, problems.
- In oral evidence, supplementing his report, Professor Swash considered the issue of tunnel vision reported on 16th and 26th of November and for several months thereafter. Tunnel vision is not physical, in the optical sense, it is not a symptom with an organic basis, it is psychological.
- Similarly, a headache is not directly attributable to brain injury. The brain is not sensitive to pain. Headache may arise from various causes which are complex. One is migraine. Another may be properly described as tension headaches which are psychogenic in origin.
- He referred to the 1961 locus classicus of 'post traumatic amnesia' by Russell and Nathan. They record that PTA is often associated with confusion. The classical definition of PTA is the period of time, post-trauma, from which the patient has continuous memory.
- In relation to the 2008 motor accident and its aftermath, if a person had been taking a drug such as zoplicone for a period of time, it is less likely to have an adverse effect, otherwise they would stop taking it but, beyond that, he would not be able to speculate.
- In relation to loss of sense of smell, unless it was suffered from the time of the accident it would not be organic in origin.
- Whilst PTA can arise where there is no apparent confusion, it is normal for a bystander assessment to identify confusion in association with PTA. He acknowledges that it is seldom that, in an A & E, any structured examination for confusion is undertaken.
- If an airbag had been deployed it would serve its function to protect the occupant of the car from forward forces.
- His opinion was based on the fact that he questioned whether, in the accident, there would be enough force to cause a DAI, particularly where there was no evidence, from the CT or MRI scans of injury to the brain. In those circumstances he had concluded that a reported period of PTA of 2 weeks, until continuous memory returned, was remarkable such that it raised, in his mind, the question whether the account being given by the Claimant was honest, though he was prepared to take the Claimant's account at face value for the purposes of forming his opinion, as reflected in his report.
- His method of assessment is to start with a blank sheet of paper. He does not read any of the previous reports or other documents before seeing the patient. His conclusions in the report were reached after studying all of the documents. He was annoyed at the subterfuge of the Claimant covertly recording their consultation but agrees that it involved him asking what the Claimant had remembered. The Claimant had said that he remembered sitting at the back of the queue of traffic at a red light. It was the last thing he remembered, except little snapshots, for pretty much the next two weeks. Professor Swash had confirmed that he had no continuous recollection for two weeks. His report had stated "Mr Siegel states he has no recollection of events for some two weeks after the accident". He did not accept that amounted to a misrepresentation of what he had asked or of what the Claimant had said.
- In part 35 questioning, when it was pointed that the hospital notes referred to post-traumatic amnesia on 26th November he responded "the question suggests that the hospital noted a period of PTA but I do not think that this is the case (as I answer this question I do not have the actual records to hand)". He did not have the time to check the records before giving that response. From the hospital notes, he accepted that amnesia was discussed and it appeared that the Claimant reported post-traumatic amnesia on 26th November.
- Asked about functional amnesia, Dr Allder had said it tends to produce a blanket memory loss without interspersed snapshots of vivid recall. Professor Swash agreed that is so when there is a "psychobreak," arising from unbearable stress, otherwise it can be used to describe a continuum of memory loss including partial as well as total memory loss.
- He agreed that he had conflated the November 2008 and 2009 accidents which was an error on his part.
- He agrees that, in her witness statement, Amber Patterson refers to the Claimant's agitated, vague or confused condition at a number of stages in the immediate/post-accident period and a loss of memory and that, with hindsight, he should have mentioned that in his report.
- On the zoplicone issue he agrees that the NHS Direct guide to patients taking zoplicone draws attention to the risk, after not having a full night's sleep after taking it, of loss of memory and accepts that was a likely explanation for the loss of memory arising in respect of the accident on November 2008.
- He agreed that the ambulance notes suggest that the airbag had not been deployed in the immediate aftermath of the accident. He agreed that the Claimant's head probably did strike the headrest, which might explain his immediate headache.
- He agreed that microscopic DAI cannot be imaged on the scanning equipment presently clinically available.
- He agreed that the list of symptoms reported by the Claimant, if genuine, constituted a "full house" of symptoms, normally associated with an axonal injury but he says that it would normally be a severe axonal injury which, in his opinion, was impossible given the circumstances of the accident and the absence of any apparent head injury in this case.
- He agrees that the Claimant was reporting cognitive problems to Dr Corston as early as May 2010. He also agrees that, with a closed head injury, a lack of awareness of the person suffering it is common. He said that the full house of symptoms included many which also appear in relation to clinical depression. He accepted that the Claimant was not currently depressed. He agreed that the full house of neuropsychological symptoms, if genuine and whatever their actual aetiology, did develop in relation to the accident.
- In re-examination he explained why, in his opinion, it was impossible for the full house of symptoms to be attributable to DAI in this case: the low speed of the collision; the absence of contact with a firm object; unconsciousness, if at all, for a very short time; his ability to converse immediately after the accident.
Psychologist for the Claimant
- Gillian Levett provided two reports: the first dated June 2011 following assessments on 22 and 23 November and 6 and 20 December 2010; the second in July 2014. She has also produced responses to the reports of Professor Trimble including a one page response to a document Professor Trimble produced during his evidence.
- Her first report begins with a summary of the Claimant's presentation which she described as garrulous and over-detailed. He found it difficult to keep to the theme. She took a full pre-accident, occupational and medical history including a psychological history.
- The Claimant values high-achievement, academic prowess, and intellect and enjoys demonstrating these. He dislikes authority and regulation both in occupation and socially. He feels best when his work is of high intellectual status with an opportunity to be creative and tends to lose interest and a sense of self-worth when it is not. He enjoys the freedom of working independently with his own ideas, whilst receiving kudos for this, but he describes himself as an anxious person who tends to worry constantly about money, work, whether he is liked, whether he is making the right decisions, or doing the right thing. He is loyal and forthrightly spoken, vulnerable to anxiety and depression if he feels socially isolated or rejected, or if he is without work of intellectual value.
- She summarised the Priory Hospital psychiatric records and took a full history of his recollection of the accident, distinguishing between what he recalls directly and what he does not recall but which he knows from other sources. He has a patchy memory of the period starting with the accident for a period of at least a week. She summarises what Ms Patterson says about the events surrounding the accident and the A & E records and his return to work.
- He reported having suffered headaches and neck pain following the accident raising the question of whiplash upon which she defers to medical opinion. He suffered a persisting pain in his right lower back, neck and left shoulder. He developed persisting headaches, not the same as migraines he had previously suffered, and persisting heightened fatigue. He described a reduced tolerance for alcohol and cognitive difficulties. Prior to the accident, he had suffered periodic difficulties in memory and concentration at times of low mood and heightened anxiety. In the period following the accident he developed a range of cognitive problems including memory problems not present prior to the accident.
- She described his post-trauma psychological disturbance, including cued anxiety, avoidance behaviours, and heightened arousal. He became an anxious driver for a short period, but he remained an anxious passenger, as he had been prior to the accident. He developed fears of being trapped, in danger, and unable to escape in crowded places such as restaurants and music concerts. He found noisy places disturbing in a way which had not occurred prior to the accident. He felt anxious, irritable and uncomfortable.
- He found it difficult to fall asleep at night and had periods of waking in a heavy sweat. Such symptoms had been present prior to the accident, had improved, and then worsened since the accident.
- He experienced immediate personality and behavioural changes, such as heightened irritability and temper outbursts to a degree not present prior to the accident. This was particularly disturbing to his family. He became disinhibited and impulse-driven, acting and speaking in ways he subsequently regretted. He had heightened fatigue, lacked motivation, and lost interest in socialising.
- Amber Patterson described to Ms Levett his post-accident bad temper including shouting at their child. He had lost his get up and go and had a reduced libido. He had developed impulsive behaviour.
- On assessment the indications were that, as a direct result of the accident, he had developed a partial PTSD and agoraphobic disorder with panic attacks and bouts of low mood which met, in part, the DSM-IV. criteria. These symptoms started in the initial period following the accident and persisted at the time of assessment in late 2010. Some were present prior to the accident but had improved by the time of the assessment. They were insufficient to meet the full criteria for PTSD, but met the full criteria for a panic attack and for agoraphobia.
- The records indicated that, prior to the accident, he had suffered a major depressive disorder, an episode of moderate severity which was reactive to life events. This would have rendered him vulnerable to a further major depressive episode following further trauma or loss, but the indications were that he had not suffered such an episode since the accident.
- On head injury, she says that, where there is an indication of head injury, a safe evaluation of post-trauma symptoms such as cognitive deficit, fatigue, irritability and emotional psychopathology requires that the presence of cerebral injury first be eliminated. She assessed the likelihood of cerebral injury using the standard criteria of a) mechanism of injury, b) presence and duration of post-traumatic amnesia and c) clinical history.
- On a), the indications were that the Claimant suffered significant acceleration/deceleration forces to the head resulting in neck pain and a possible whiplash type injury. He self-reported that he may have hit his head on the headrest.
- The indications were that the Claimant suffered a brief retrograde amnesia, he has no recall of the sound of the impact.
- On b), post-traumatic amnesia, she describes that as the length of time to restoration of continuous memory following trauma to the brain. The length of PTA is considered to be the most reliable single indicator of the severity of closed head injury. It is characterised by "islands" of memory within amnesic periods. During these episodes events cannot be recalled which would be expected to be recalled naturally, or on prompting, regardless of the passage of time. Ms Levett concludes that the Claimant showed a PTA of several days indicating a "severe" cerebral injury.
- On c), clinical history, it is unclear whether he was rendered unconscious but that is not necessary for a cerebral injury to have occurred. His Glasgow coma score at 17.47 was noted to be 15, no reduced level of consciousness. He showed a PTA of at least several days and symptoms of confusion, difficulty in logical reasoning, visual disturbance, nausea, headaches, and heavy fatigue. He continued to show symptoms consistent with cerebral injury: cognitive defects; persistent increased fatigue and loss of stamina; personality changes, including heightening irritability, temper outbursts and impulse behaviour, reduced tolerance to noise; reduced alcohol tolerance; and persisting headaches of a frequency not present pre the accident. She describes in detail the various symptoms under 14 separate headings.
- Under "discussion and attribution" she says as follows:
"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."
- She describes the following persisting physical difficulties: headaches, fatigue, sleep disturbance, and heightened arousal.
- Her summary and opinion includes the following:
"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."
- On prognosis, Ms Levett states that, for cerebral injury, she knows of no evidence that it is possible to make a complete recovery. Symptoms may continue to improve over a period of two years. She recommends reassessment after that time. Any residual effects over two years are likely to remain. Persisting cognitive defects and heightened fatigue are likely to continue to reduce his workplace skills and stamina. Heightened irritability will reduce his ability to tolerate conflict or frustration in the workplace.
- Cognitive defects in concentration, memory, fatigue and heightened irritability may be associated with cerebral injury, anxiety disorder and clinical depression, to the degree to which they are a component of functional disorders. Symptoms are likely to improve in proportion to his recovery from those disorders. To the extent to which they are attributable to cerebral damage, those persisting over two years post-accident are likely to be permanent.
- The combined physical, cognitive and emotional difficulties mean he is unlikely to achieve his previous workplace standards. His occupational skills are reduced by cognitive deficits and reduced stamina. He will have difficulty in any role requiring sustained concentration, multi-tasking, speed of processing, and switching attention rapidly from one task to another. Tasks involving executive skills such as planning, organisation, prioritisation, and sequencing will require increased effort. His reduced stamina and easy fatigue are a complicating factor. He is likely to have difficulties with interaction with work colleagues under stress and keeping his composure and focus.
- She recommended treatment by way of cognitive and behavioural psychotherapies for his emotional difficulties. For the cerebral injury he would benefit from an individually tailored programme of cognitive rehabilitation and management, and fatigue management with specific emphasis on the work place.
- For the second report she referred to his presentation in March 2013 when the above disorders were noted to persist. His marital relationship and workplace functioning continued to suffer.
- He had suffered further personal stressors arising from the death of his mother, his wife's pulmonary embolism in Febrary 2011, the loss of his job with HP and starting with T-Systems. His heightened fatigue remained debilitating. He struggled to concentrate in meetings, would develop a severe headache when mentally fatigued, if meetings lasted more than 2 hours. He had difficulty recalling conversations and recognising colleagues. He struggled with decision making, his marriage continued to be affected, he and his wife had received 8 sessions of marital counselling from Relate.
- He underwent treatment with Ms Levett, attending regularly, carried out all homework tasks as requested. He attended weekly or fortnightly from March 2013 until the date of the report. He was made redundant from T-Systems in August 2013 and then worked briefly for Homeserve. He only attended 6 appointments between July 2013 and February 2014 but, thereafter, resumed fortnightly sessions.
- He was treated for symptoms of PTSD and agoraphobia and received cognitive rehabilitation to assist with monitoring and improved management of his cognitive difficulties.
- He progressed well and no longer suffers PTSD or agoraphobic symptoms. He has regained his enthusiasm for a social life. He has acquired methods of managing the more debilitating cognitive deficits and this work continues. He has developed new means of managing specific tasks, which has assisted with fatigue levels. He has established methods of recording and storing information enabling him to reduce his reliance on memory. He is better able to implement methods of avoiding multi-tasking. Heightened fatigue remains a debilitating problem, though he can manage it by introducing regular breaks when he may close his eyes and avoid noise. He continues to suffer headaches, managed with painkillers, but he has reduced his level of painkillers. He continues to suffer longstanding gastrointestinal problems and his sleep continues to be intermittently disturbed. He has made good progress in monitoring and addressing anger and impulse behaviours. His self-esteem has improved and he has begun to resume social activities outside the home.
- He remains clear of psychopathology and his mood is optimistic. The cluster of symptoms consistent with cerebral injury remain: heightened fatigue and headaches related to mental exertion; difficulties in social judgment; and heightened irritability. He uses the learned coping skills but, if he does not follow those rules, he will suffer increased fatigue, headaches, and occasional nausea and will become irritable and short-tempered.
- The cerebral injury has meant he has struggled in his work as an IT architect. He is able to obtain work on his CV but has lost 3 jobs in a row and is currently unemployed. On PTSD, his long-term prognosis remains good. Similarly, with the agoraphobia and panic attacks. However, the residual effects of the cerebral injury, persisting over 2 years post-injury, are likely to remain.
- His combined physical, cognitive, and behavioural difficulties render him unable to achieve his previous career ambitions. He is not capable of sustaining the type of work he was capable of pre-accident. His skills are reduced by cognitive defects and reduced stamina. Work relationships are reduced by difficulties in social and interpersonal judgment, heightened irritability, vulnerability to temper outbursts and impulse behaviour. He will have difficulty in any role requiring sustained concentration, multi-tasking, switching attention from one task to the other, and processing and linking abstract concepts. His reduced stamina and easy fatigue are a complicating factor. She advised a graded return to part-time work, monitoring of progress and building up to a 3-4 day week.
- Ms Levett has produced a third report dated 31st August 2014 dealing with the reports of Dr Connolly and a fourth report of 19th October in which she considers the reports, amongst others, of Professor Trimble.
Gillian Levett live evidence.
- She said that she is a practising chartered psychologist whose field of expertise is in mental health and behavioural medicine with specialist knowledge in the assessment of and treatment of emotional disorder. She worked in the NHS until 1994, finally as a consultant clinical psychologist in behavioural medicine and psychology at the Middlesex UCH Hospital Trust. Since then she has worked full time in private practice with clinical, research, teaching and consultancy commitments. Her interview technique is structured: she will take a history, and an account of the client's current condition. She will undertake a functional analysis of symptoms identifying the trigger, the symptomatic behaviour, and the consequences and will proceed to a diagnosis. She is acute to distinguish between cerebral injury and anxiety.
- Her first report was dated June 2011, six months after she had seen the Claimant and his wife on 4 occasions in November and December 2010. The reason was the delay in obtaining medical records, though she did not have the GP notes until after that first report.
- Her observation of the Claimant and in court was that he was garrulous, found it hard to focus, got easily fatigued at the end of a session, and, if it continued, he would develop a headache.
- In cross-examination she explained that her teaching had ceased 4-5 years ago. It had been once or twice a year. She has published two pieces of research.
- She did not see any conflict in her position as an expert, with responsibilities to the court, and as a clinician, treating the Claimant.
- In 2008 the Claimant had been treated for depression at the Priory, in connection with which he reported a decline in his ability to concentrate. This was treated with medication and improved. There was no suggestion that it had an organic cause.
- Post-traumatic amnesia bears a heavy weight in her analysis. It is not the only factor, but it is an important index of likelihood of cerebral injury.
- She was taken through her report. She had noted that, other than when giving his family history, the Claimant responded in fine detail on all other subjects. He had struggled in respect of the family history, was unable to provide names, ages, who did what, or when. When describing his mother and having discovered, after her death, that she could be very petty, he was not distressed with having lost contact with his family.
- In describing his childhood, the Claimant had described isolation at school and struggling socially during his teens. She had not been told about his low mood in 2001, in the aftermath of the dotcom bubble bursting. She described his suicide attempt, when a teenager, as an episode of clinical depression. He had also reported, from time to time, low moods, moping about, but not going to the doctor. He had become depressed in 2008, giving a range of reasons to do with work and the absence of privacy in his flat. He had also described his shoulders and surgery as contributing. Amber Patterson had given evidence that she was worried that the present accident might trigger more of the same.
- The Claimant had described himself as an anxious person who tended to worry constantly about a range of things, including work and money, and was vulnerable to anxiety and depression if he felt socially isolated or without work of intellectual value.
- She was taken through her post-traumatic amnesia assessment. She described the process of asking what his first memory was and then what his next memories were and engaging in a dialogue, asking him specific things and whether he had remembered them. It was suggested that this was not a helpful methodology as it might trigger false memory, particularly a year after the events, but she disagreed. The wealth of detail he gave on certain subjects was not as a result of any prompting on her part. She was concerned to identify what memories he had, not whether they were, or were not, accurate. Her judgment was that he did not resume continuous memory until about 26th November when he returned to the hospital in Norwich, though she had not specifically asked him when he had recovered continuous memory. In her first report she referred to his major depressive disorder in 2008 and set out the symptoms from which he suffered, including fatigue and loss of energy, sleep disturbance, diminished ability to think or concentrate and indecisiveness. She had recorded that such a history would have rendered him vulnerable to a further major depressive episode following further trauma or loss. He had not suffered such an episode since the index accident. Though he had suffered bouts of low mood, loss of motivation and sleep disturbance, he did not meet the full criteria for a major depressive episode. He said he did not feel depressed.
- It was pointed out that, in July 2012, he was describing a low mood to the GP and had been prescribed anti-depressants. His low mood persisted through August 2012 and October 2012, when he asked for a private referral to a psychiatrist for ongoing depression. He did not take up that reference but continued the anti-depressants, in reduced dosage, until April 2013. Ms Levett proffered the opinion that was not a major depressive episode. She was in a position to diagnose such disorders.
- She maintained that her diagnosis of a post-traumatic amnesia lasting several days indicated a severe cerebral injury.
- Where there is an indication of a head injury and the symptoms are characteristic of both an organic and a psychological source she will consider a cerebral brain injury in order to eliminate the possibility. Where the symptoms described are consistent with a cerebral injury, there is no longer any psychopathology operating, but those symptoms persist, she would say that the symptoms were caused by a cerebral injury.
- She acknowledged that use of DSM IV and V, in the forensic context, requires caution. The criteria set out in those documents are not to be used as "a cookbook" but as guidelines.
- The Claimant had a number of symptoms consistent with PTSD but she did not conclude that he had PTSD as he did not satisfy the gateway criteria.
- She had treated the Claimant as a patient between 8th March 2013 and 29th October 2014, on some 58 occasions, and had received payments, on his behalf, from his solicitor, but she has no knowledge where those funds came from.
- On 1st November 2013, the Health and Care Professionals Council conduct and competence committee had found her fitness to practice impaired and had directed that her name be struck-off the HCPC register of practitioner psychologists, with an interim suspension order to cover any appeal. On 4th April 2014, after a hearing before Mr Justice Haddon-Cave, her appeal against the panel's decisions, save in relation to an allegation of breach of confidentiality, were dismissed. She is appealing that decision.
- Professor Trimble is emeritus Professor of Behavioural Neurology at the Institute of Neurology and Honorary Consultant Physician to the Department of Psychological Medicine at the National Hospital for Neurology and Neurosurgery. In addition, he is a Fellow of the Royal College of Physicians, the Royal College of Psychiatrists, a member of the Association of British Neurologists, a fellow of the American Psychiatric Association, and a member of the American Neurological Association. He has three research degrees, an M D in medicine, a BSc in neuroanatomy, and an M Phil in psychiatry. He has numerous publications. He is a professor of behavioural neurology with particular interest in psychiatric disorders following accidents including head injuries.
- His first report is 14th January 2014, following an attendance by the Claimant and Ms Patterson. He records the history given by the Claimant, who remembers events up until the collision. He speaks of little snapshots of memory following the accident. He records his subsequent treatment and also his medical history from his GP records prior to the accident.
- He discussed the Claimant's ongoing problems. The Claimant said his short-term and working memory was impaired. He cannot recognise people he works with, he has fatigue, leading him to sleep long hours at night. He spoke of constant headaches radiating from the front right to the back left of the head, which are worse with fatigue, for which he takes oxycodone. He has lost part of his sense of smell. His wife says he has irritability and a short temper, often aggression, not just to her but to other people. He will say inappropriate things in public places. He gets lost while around the Centre of Birmingham but he says he is not depressed.
- Professor Trimble then records the Claimant's account of his past history and background.
- Professor Trimble records that the Claimant explained things clearly, had good recall for facts, not only immediately after the accident but his biographical history. He complained of fatigue, sleeping a lot, and decreased libido. He does not suffer from panic attacks. He is able to drive, though he is very fearful as a passenger. Biological symptoms and signs of depression were not present.
- Professor Trimble refers to witness statements, including that of Mr Ress, who says the Claimant is "effective in short bursts". He also summarises elements of the Claimant and Amber Patterson's witness statements. He refers to Ms Levett's report dated June 2011 who, like himself, describes episodes of patchy memory following the accident. Professor Trimble records her belief that the Claimant had developed a partial PTSD and agoraphobia and panic attacks and that he had cognitive, personality and behavioural changes consistent, not only with emotional psychopathology, but also with cerebral injury.
- He records that Ms Levett discussed head injury. She considered the Claimant had PTA of several days, which suggested severe cerebral injury. She discussed his cognitive deficits. There was, at that stage, no neuropsychological testing.
- Professor Trimble's conclusions are that the accident was not such as could be seen as sufficiently frightening to be an entrance for a diagnosis of PTSD. There was no evidence the Claimant had a head injury associated with the accident. The hospital records stated there was no loss of consciousness. His GCS was 15/15. He had adequate immediate memories, then patchy memories for quite some time afterwards. There were various explanations for this, but the pattern of memories did not add up to someone who had a severe head injury and had developed PTA. The areas of the brain that need to be put out of action in a head injury, so as to lead to a prolonged PTA, would be dysfunctional from the moment of the head injury and the islands of memory, including immediate memories following the accident, did not add up to the kind of amnesia one sees in people with a significant head injury with structural damage of the brain. Tunnel vision is an important clinical indicator of non-neurological sequelae.
- Professor Trimble records that the Claimant considers he has had a severe head injury, which was suggested by Mr Price, a neurosurgeon, and by Ms Levett. They referred to DAI and the Claimant considers himself damaged by a cerebral injury.
- Professor Trimble concludes that the Claimant has a propensity to develop psychiatric difficulties. He has a past history of at least one major episode of depression as well as developing the psychosomatic illness referred to as irritable bowel syndrome. He also appeared to have had extended retrograde and post-traumatic amnesia arising out of a previous road accident.
- His main reported symptoms are anxiety-related, falling short of PTSD but, in Professor Trimble's opinion, his cognitive problems are not typical of somebody with severe brain damage. The headaches, noise sensitivity, irritability, and mood-swings are compatible with an anxiety-related disorder. Other factors contributing to his symptoms include the bereavements of his Grandmother and Mother, the estrangement from his brothers "and sisters" (in fact he has none) and an increasingly difficult marital situation. There were other problems weighing heavily on him including two legal cases against previous employers.
- In his second report, dated 8th September 2014, Professor Trimble restates that the post-traumatic amnesia described is not the kind which one sees following a cerebral concussion, particularly one of a severity that would lead to severe brain damage. It is the kind of amnesic deficit best referred to as a psychogenic amnesia. He stresses the fact that, though suffering from a severe cerebral injury, the Claimant appears to have returned to work very quickly.
- Commenting on Dr Allder's report, he says "the important thing is the intermittent memories which he claims to have and not the continuous loss of memory which gradually improves over time, which would be typical of serious cerebral injury". Professor Trimble also notes the lack of loss of consciousness, the normal GCS score, his alertness in the A & E department, using his mobile phone, and the normal CT scan. He says that, having suffered significant acceleration/deceleration forces, in and of itself, would not suggest an underlying cerebral injury. He notes that Dr Allder says that the above difficulties were consistent with psychological disturbances as well as organic impairment. The assumption of organic impairment seemed to be based upon cognitive difficulties and heightened fatigue, in the absence of subjective distress or agitation, as well as on a sudden personality change, all of which, Professor Trimble says, is compatible with psychological as opposed to neurological injury.
- He concludes that:
"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."
- Following his initial report, part 35 questions were posed. They included question 1 "
did you explain to the Claimant the importance of differentiating between knowledge and recall" to which Professor Trimble indicated he was unable to understand the difference between knowledge and recall which is a dense philosophical question. It was not a distinction he could address meaningfully. He maintained that position in his oral evidence.
- Question 2 noted that he had recorded snapshots of memory which the Claimant had recalled. He was asked why he had not recorded those events that the Claimant told him of which had occurred, but of which the Claimant had no memory. His response was:
"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."
- In response to question number 12, which asked him to clarify whether symptoms of ballistic disinhibited temper outbursts, fiscal impulsivity and alcohol intolerance are symptoms that present with anxiety or depression, he responded:
"There are many symptoms that he has which are not typical of brain damage. First
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 indicated in evidence that topographical orientation problems denoted a cortical problem affecting the grey matter not white matter. So too were speech problems, which related to the left cortex, and arithmetic difficulties which were neurological. He explained that the white matter is inside the brain and connects the back to the front.
- He took issue with the description of the Claimant suffering "severe brain damage" which he related to damage of an order of severity to be found in patients such as Michael Schumacher. He accepted the Russell criteria for PTA as loss of continuous memory of in excess of 24 hours, if other symptoms confirmed it. He explained that if a doctor told you that you were suffering severe brain damage, it was highly likely that you would take on board symptoms of such an injury.
- On functional amnesia he explained there was a spectrum, it wasn't necessary for there to be a blanket loss of memory.
- He explained that the Claimant was an anxious man who had an accident causing anxiety and symptoms which were consistent with, but did not fulfil, the PTSD criteria.
- He explained that, in his view, "severe" brain damage which was not visualised by any scanning technique which we presently have, including MRI scans, did not hold up as a diagnosis. The classical DAI, described as severe, would involve slowing of mental processes and would alter the pathways of motor function affecting expression and gesture, of which there were no reported changes. Indeed, Professor Morris had assessed speed of response as superior, which was not compatible with a severe brain injury.
- When it was explained to him that the use of the word "severe" was derived from the Russell criteria, namely that, where there was post-traumatic amnesia of in-excess of 24 hours, that might denote, technically, a "severe" brain injury, he said that he had been unaware that was the way in which the description "severe" was being used in this litigation.
- He agreed that, in the course of his interview with the Claimant, he had said to the Claimant that neuropsychiatrists, dealing with people who have problems such as his, where the causes were not defined clearly, could resolve the diagnois by the use of neurocognitive testing and that, if there was any suggestion he had brain damage, he needed to be clear about it either way. In such cases he usually recommended an MRI scan. When asked if that was something he was going to recommend for the Claimant he said "I would certainly recommend it".
- Professor Trimble produced a document, at my request, to clarify his understanding of the Claimant's neuropsychiatric problems. In that document he set out his understanding of the Claimant's history of medical and psychiatric disorder. At paragraph 15 of that document he says "[the Claimant] describes himself as an anxious person who worries constantly, he was diagnosed as having a moderate depressive episode". That is a reference to 2008. At paragraph 19 Professor Trimble says
"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."
- He records that there are signs and symptoms of PTSD. The Claimant's islands of memory loss are not compatible with memory loss of, even moderate, brain damage, in which injury to the neurological apparatus, which is put out of function, leads to a continuous loss of memory, (not islands). He identifies reported symptoms which could only be interpreted as psychogenic amnesia, namely headaches, tunnel vision, tingling on the face, nausea, dizziness. In Professor Trimble's view, these symptoms were classically psychological.
- Professor Trimble continues to refer to the fact that Dr Allder, in his report, had listed a series of symptoms consistent with cerebral injury, which he had identified in his report as a) to f). Dr Allder had then listed cognitive difficulties, from a) to n). Professor Trimble says "this collation of symptoms is entirely consistent with a psychological, and not a neurological, syndrome". Professor Trimble suggests they are consistent with a psychological disorder with a basis on two axes, his personality attributes and anxiety.
- Based on the Claimant's history, Professor Trimble states that his personality style had led him into difficulties over the years. His anxiety relates to increased awareness of what is going on in his body and mind, provoking self-generated thoughts which, in turn, increase anxiety and bodily awareness, as evidenced, in the past, by irritable bowel syndrome.
- Early on, after the accident, the Claimant was informed he had concussion, and then he was informed he had brain damage. He would naturally become more and more fixated on that idea. In Professor Trimble's opinion, weighing up a neurological, as opposed to a psychological, collection of symptoms, the balance reflected a psychological interpretation. The symptoms, alleged to be secondary to DAI, are entirely compatible with anxiety related disorder intertwined with his personality profile. Those symptoms, interlinked with ongoing anxiety and memory and concentration problems, namely poor organisation of thought, exaggerated negative expectations, being quick tempered, aggressive verbally, and difficulty in attending and focusing are entirely compatible with an anxiety-related disorder intertwined with his personality profile which has emerged over the years.
- Associated with this is continuing stress in a man who responds to stress with bodily and cognitive symptoms. The associated matrix of stress factors include the accident, with its psychological impact, bereavements, difficulties with work relationships, and domestic issues.
- Professor Trimble notes that after a prolonged depressive episode, treated by Dr Nasr, the Claimant came off anti-depressants three to four months before the accident. He had "three" depressive episodes before the accident which, it is known, makes one highly likely to continue to have episodes of depression in the future.
- Professor Trimble's opinion is that the clinical picture, taken as a whole, is heavily weighted in favour of a psychological interpretation of his symptoms. The evidence that the Claimant sustained brain damage is thin. It is not possible to understand, with any plausibility, the wide perspective of his symptomatology in terms of microscopic damage to discrete white matter trapped in the brain. In his opinion, the Claimant does not now have a psychiatric disorder which requires ongoing treatment and, once this case is finished and the stress relieved, he will, from a psychological perspective, improve considerably. If he labours under the misapprehension that he has severe brain damage his prognosis would be worse.
- In that document, Professor Trimble culled the first 14 paragraphs from the reports of Ms Levett, Mr Price and Dr Allder. Professor Trimble said he did this deliberately to avoid argument.
- In describing the Claimant's immediate, post-accident symptoms Professor Trimble used the accident and hospital records as well as witness statements.
- In cross examination, Professor Trimble says the evidence of Andy Guile relates to knowledge of him two months after the accident. He was unable to see the mechanism by which microscopic damage to discrete areas of white matter could lead to the symptomology described.
- Professor Trimble had not had the article of Smith and Meaney brought to his attention. He is aware of acceleration/deceleration of the brain as a mechanism but doubted that a 20mph rear-end shunt would give rise to sufficient acceleration/deceleration forces to cause brain injury. He used the analogy of Ussain Bolt who runs at 27mph. He has no expertise in the mechanics of road accidents or kinetic forces.
- Dealing with the "full house" of symptoms described by Dr Allder and so described by Professor Swash, some of them were purely psychological.
- He agreed that when he saw the Claimant in November 2013 he had no depressive symptoms but he describes the Claimant as having a personality giving rise to a disposition to behave in non-advantageous ways. He would not describe it as a personality disorder, rather it was a predisposition.
- He had undergone a number of stages in the preparation of a joint statement with Ms Levett but, eventually, he withdrew from the process, for reasons stated in a letter of 16th October 2014: first, inordinate, disproportionate expense in performing any more work on the exercise; second, there was no overlapping expertise between him and Ms Levett; and third, in the light of her removal from the register of practitioners and her potential conflict of interest as a treating agent as well as an expert.
- He claimed that Mr Dickinson, the Claimant's solicitors, was instrumental in a number of complaints made against him by Mr Dickinson's clients, three, he says, to the GMC, none of which were upheld. He also believes that Mr Dickinson prompted a belief, held by the Claimant and Amber Patterson, that he, Professor Trimble, was guilty of gross professional misconduct by complicity with organising surveillance immediately after they had attended Professor Trimble's premises. However, he says that, in his role as an expert, he has no hostility towards the Claimant and the past history between him and Mr Dickinson and Mr Price, who had in the past questioned his credentials as a neurologist, did not prevent him discharging his duties to the court as an expert.
- The Claimant had three recorded episodes of depression: one when a teenager in 2008, and one other before the accident. He did not identify the third. As such, he was susceptible to suffer depression. He agreed that in DSM -V there are 11 personality disorders and 7 anxiety disorders. The cluster of symptoms exhibited by the Claimant did not fall within any of those, so the Claimant was suffering from no formally recognised psychiatric disorder in terms of DSM-V.
- All of the symptoms from which the Claimant suffers are subjective, in the sense that they are all described by him. Hardly any of the symptoms described by Ms Levett at paragraph 4.1 in her report had not been present prior to the accident, though not necessary all at the same time. Professor Trimble agreed that the white matter, and in particular the axons, are involved in connectivity, but he could not see how the Claimant could have the memory difficulties of which he complains without damage to the cortex.
- Professor Trimble agreed that PTA can manifest itself in a number of ways and that snapshots of memory can be consistent with one of them.
- There is a joint statement of Professor Silk, for the Claimant, and Dr Millar, for the Defendant. Both are consultant gastroenterologists. They have agreed the following:
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.
- Dr Millar gave evidence that he gave his agreement to the statement in paragraph 5 on the basis that it was established to the court's satisfaction that the road accident had caused a brain injury. He also agreed in cross examination that PTSD and agoraphobia would make vomiting and diarrhoea worse and that such changes could be caused by increased stress.
- There is a joint statement of Mr Burden, for the Claimant, and Mr Evans for the Defendant.
- On behaviour: They agree that the Claimant demonstrated disinhibited behaviour throughout their meetings. Mr Evans described it as a desire to portray himself as a having a "bad boy" image. He had a propensity to be very verbose, with little or no self-awareness or emotional intelligence. Mr Burden said the Claimant cultivated his image as over indulgent when a student, but was verbose and lacked emotional intelligence. They agreed that his behaviour was highly likely to inhibit his ability to perform the role of a senior manager in the UK where an individual is expected to maintain minimum standards of appropriate behaviour.
- Mr Burden believed it unlikely that the Claimant would have progressed so far in his career had he displayed such disinhibited behaviour during his previous career. Mr Evans is of the view that it is possible he may have had a predisposition to speak his mind.
- On communication skills: They agree that the Claimant has strong communication skills for someone working in the technology sector. Those skills set him apart from most individuals at his level in that profession. They agree that this most probably had a very positive influence helping him to rise to a senior management position within the technology industry. The ability to provide clients with simple explanations is a very valuable asset. Those who can manage it are very sought after and have excellent employment prospects, progressing quickly to prominent positions.
- On employment prospects. They were unable to agree.
- Mr Evans saw no evidence at interview that he should not be able to work at his current level, or that which he enjoyed prior to the accident. Mr Burden considers the evidence overwhelmingly supports the conclusion that he is currently not capable of sustaining a career at the level he had reached prior to the accident. Mr Burden relies on his employment record with T-Systems and HomeServe, where he was unable, successfully, to fulfil his duties. He also relies on the evidence of the Claimant's behaviour at interview.
- The Claimant's failures at T-Systems and Homeserve, from whom a future employer would be likely to seek references, would result in such future employer having to be completely satisfied that he was able to perform his duties uninhibited by his medical condition.
- Both agreed that a prolonged career break for a period of convalescence would make it more difficult to return to a senior position in senior management. It is important to maintain an up-to-date knowledge base. An employer would want to know the details behind a career break and would be concerned about employing someone who has suffered the prolonged symptoms experienced by the Claimant.
- On future earnings: Mr Evans has put forward a range of between a £65,000-£140,000 package until retirement because it is unknown what level of role the Claimant would be able to secure. There are a number of imponderables. Mr Burden agrees that, in any event, the Claimant may have made future choices which would have reduced his total future earnings. For example, he might have decided to become a part-time consultant, which many professionals do on approaching retirement. Mr Burden's figures on expected future earnings are based on a continuation of the current career path, with some progression for seniority and salary inflation.
- Both agree that the income he received with T-Systems and HomeServe represent realistic figures, reflecting the minimum earning expectations for the period during which he remained in full time employment. With T-Systems the overall package was worth £150,000. With Homeserve the overall package was £160,000. Both agree that the level of earnings could have been higher or lower: Mr Evans says a maximum £140,000 plus bonus and benefits; Mr Burden set this level higher. He says there is a 70% probability that a career, unaffected by the accident, would have seen earnings rise to a base salary of £190,000 plus £100,000 bonus and benefits by age 50, and that, by 2011 his earnings were already being affected by the accident.
- On earnings peak: They agree, at the age 38, he was unlikely to have reached his earning peak. That was likely to have been achieved between 45 and 50. It is agreed he was probably not destined to rise to the most senior technology posts in the largest organisations, but, if uninterrupted, could have risen to a senior management post within a large and prominent organisation.
- On employment longevity: Mr Evans considers it unlikely the Claimant would have remained in a post of real seniority beyond 55. He may then have chosen to pursue an alternative career as consultant or contractor. This is based on the opinion of other experienced recruiters. Furthermore, he has rarely met anyone working in IT beyond that age.
- Mr Burden agrees that it is currently unusual to see IT professionals beyond 55. By the time the Claimant was approaching that age, he anticipates that most organisation will employ IT professionals to a sufficient degree that it is reasonable to expect a person to have a full time career on leaving school, or university, until statutory retirement age and beyond. Whilst many might choose to retire earlier for different reasons, Mr Burden's conclusions that the Claimant would have continued until 67 are based on the Claimant's comments about his intention to work until that age. He has little in the way of pension provision and there is a significant market for IT consultancy to prolong his career beyond fulltime employment.
- Mr Evans, in cross-examination, agreed that the Claimant spoke for 95% of the time, that Mr Evans did not take any notes, and there was no written agenda. He had made notes after the meeting. It was pointed out that the phrase "selling showerheads to old ladies" was not something the Claimant had said. In the transcript it appears that Mr Evans made a similar comment. Mr Evans did not accept the transcript was accurate. He accepted that, far from making sexist comments, in the course of the interview the Claimant had indicated he had defended one of his female colleagues from unwanted attentions. Mr Evans denied that the fact that the transcript shows him making a comment about "wives always being disappointed with the level of remuneration achieved by their husbands" was sexist.
- Mr Evans agreed that it appeared to be the case, from the emails within T-Systems, that they had got rid of the Claimant because of his continuing absence and against the advice of the United Kingdom HR department.
- He had understood that the Claimant was indicating that he wanted to work in sales. He did not ask the Claimant if he had made any retirement provision.
- In his report, he recorded that the Claimant had come across in his medical assessment a year after the accident as being garrulous, unable to keep to the point, had shown heightened fatigue, lowered tolerance and reduced verbal control. By way of contrast, when he interviewed the Claimant, he came across as enthusiastic, outspoken and opinionated, emphasising the bad boy element in his character, giving a very detailed and passionate description of his skill set and being very capable of negotiating sales contracts as well as being confident and engaging. It was only at the end of his interview that the Claimant had spoken about his inability to perform at the same level as previously due to his injuries, giving examples of forgetting details and people's names. Mr Evans said there was no evidence of the Claimant's memory loss in his interview. He had recounted his early childhood memories and career with precision and detail.
- In the joint statement, Mr Evans had agreed that the Claimant's behaviour was highly likely to inhibit his ability to perform the role of a senior manager in the UK. He said that was consistent with his opinion that there was no evidence that the Claimant should not be able to work at the level he had enjoyed prior to the accident.
- In his report, Mr Evans had said that, but for the accident, if he had remained in employment, the likely remuneration would have been between £65,000 and £140,000 base salary plus £50,000 benefits until retirement. In the joint statement, where they both said that the T-Systems and HomeServe income represented realistic figures which the court could rely on as minimum earning expectations for the period during which the Claimant remained in full time employment. He said those figures assumed that the accident had happened.
- He accepted that there were periods of continuous employment in his work record: five years at EDS/HP, three years at RAC, four years at Alliance. He thought it would be possible for the Claimant to find employment as he had no difficulty in attracting offers.
- When examining, in detail, future possible employments, he had listed a series of possible jobs, each of which was similar to, or in the same region of activity as, that which he had been previously doing, albeit at different levels of seniority. He maintained that his assessment that the Claimant was confident and engaging, keen to explain how highly people thought of him, had always been a high-achiever, and was very good at his job, was accurate, as was his conclusion that there was no evidence that the Claimant should not be able to work at his current level, or at which he enjoyed prior to the index accident.
- He maintained his conclusion that, but for the accident, it was fair and reasonable to suggest that the Claimant could have developed his career, but that even with his multiple symptoms, recent employment record, and ongoing litigation, he appeared able to secure employment with relative ease. On that basis the Claimant would have been able to make a comfortable living, if he were able to stay in employment, until he chose to retire. Whilst his personality and character traits may have contributed to his redundancies and career changes, he had a history of depression and mood disturbance and he doubted that the Claimant's employment pattern would have changed in the future so as dramatically to affect his earning capability. The Claimant does not have a profile that would mark him out as a star by reason of his lack of impressive educational qualifications and the fact that he has not stayed in one job for a substantial period of time.
- Mr Burden reports on behalf of the Claimant. In summary, he reports that the Claimant had, prior to his accident, established his chosen career as a technology specialist. He had progressed into senior management and could expect significant further progression in his career. He expressed a desire to continue in his career for the foreseeable future. The evidence suggests he would have continued to progress within his career. He had an impressive track record, he had accumulated experience of a type which was in high demand. He could anticipate further career progression and an increase in earning capacity for several years to come, followed by the prospect of additional earning from lucrative consultancy opportunities.
- Since the accident he has continued to attempt to find highly paid work and has been successful in doing so, though he has found it impossible to perform at the level required in these roles as a result of his medical condition.
- He conducted an interview with the Claimant for two and a half hours, including a comfort break, and one of a further hour on the telephone. The interview was on 10th May 2013, the phone call on 7th January 2014.
- The Claimant was punctual, smart, and well presented. He was animated and lucid, able to articulate precisely and without hesitation. He was increasingly realistic. He would be unable to return to senior challenging positions in the future and had no plans or thoughts about a fall back position. His recent job search had resulted in several offers, of which he accepted that of HomeServe. His knowledge, skill set and personal qualities are in very high demand. The fact that his brain is letting him down is affecting his morale and there was no real sign he had developed the coping strategies required. At the end of a relatively long and intense meeting he retained a similar demeanour to the one he had at the outset, though he said that it had required preparation to ensure he was able to attend and had the energy needed to participate. In January 2014 he had to postpone a pre-arranged telephone conference call due to fatigue.
- He has become an expert in his field. The combination of strong analytical skills, with his creative mind, have helped him look at the challenges of IT architecture in a holistic manner. He also has strong communication skills. He is able to share his ideas in a simple and straightforward manner, a quality not common amongst technologists. He has a strong sense of purpose and direction. He had, prior to the accident, an extensive career of over twenty years.
- Mr Burden set out in tabular form a career path from the age of 38 to the age of 50, if the accident had not occurred. He did not anticipate significant salary progression beyond 50 but would suggest increments of 5% to the age of 55. Up to the age of 50 he has set out the total remuneration package rising from £140,000 in 2009-2010 to £290,000 in 2020-21, which he had a 70% chance of realising by the time he reached 50.
- He also set out the Claimant's minimum earnings potential. It was reasonable to conclude that it should be based on the total compensation package he had secured at HomeServe of £160,000, with the prevailing inflation rate applied until 55. If he worked as a consultant, paid daily, the £160,000 equates to a day rate of £615 but, as a consultant, it would be £850 daily. It was unlikely he would secure payment for more than 40 weeks in the year, giving a figure of about £160,000. On longevity of career, it is said to be common for executives in commerce to retire between 55 and 60. The Claimant had to build up sufficient funds for a good retirement and enjoys work. He would want to remain active in the work force until his sixties.
- In the joint statement, he agreed that the Claimant lacked emotional intelligence. In re-examination he said that what was particularly relevant was what he had been doing in the last 3-4 years and, in the Claimant's case, his track record during that period was very damaging as an incentive to an employer taking him on as a permanent employee. It was less so if he were to seek work as a contractor.
Neuropsychology- Joint statement
- In their joint statement, Dr Connolly, for the Defendant, and Professor Morris, for the Claimant, record disagreement on a range of issues reflected in their reports. They agree on limited matters: the neuropsychological test data obtained by Professor Morris is more likely to reflect the Claimant's true level of neuropsychological functioning; in general the more tests used the greater the reliability and validity of the data; the Claimant demonstrates high levels of fatigue; the Claimant did not present with a depressed mood; and the Claimant describes improvement in some symptoms of anxiety.
- He has provided 3 reports. The first is based on an assessment conducted on 26th February 2014. He reviews the reports and witness statements including that of Mr Price, the consultant neurosurgeon who had diagnosed a severe head injury with symptoms associated with PTSD and agoraphobia. He also reviewed the reports of Professor Swash, Professor Trimble, and Dr Connolly. He reviewed the other witness statements which, he concluded, were consistent in observing the Claimant's deteriorated function and personality changes.
- The Claimant described his current symptoms. He has problems with working memory, he will lose his train of thought and the point he is trying to get across. He has problems with short-term memory, struggling to remember people in his work. He has to make lists. He would forget to attend work meetings. He has difficulty abstracting from daily situations and with multi-tasking. He gets lost even though familiar with the town in which he lives. He will get very fatigued, particularly if he needs to focus and may need days or weeks to recover if fatigue accumulates. He now paces himself. He has headaches which get more severe when fatigued. Pre-accident he had experienced depression, but he thinks he is not depressed now. He experienced PTSD which was now pretty much under control. He found it difficult to attend to anything for any length of time. He cannot do mental maths anymore and has problems trying to absorb information. He struggles to appreciate other people's point of view. His communication seems rather aggressive. He has little impulse control and can blurt out things which are upsetting or inappropriate. He has anger management issues and will react to situations inappropriately, going overboard in his reactions to events. His alcohol tolerance level has reduced.
- By splitting the assessment into two sessions, with a long break in the middle of the day, the Claimant was able to remain focussed throughout the two sessions, was articulate and communicative.
Professor Morris's Neuropsychological assessment
- They were assessed using the Wechsler Adult Intelligence Scale 4. His full scale intelligence quotient is 136, in the very superior range. It provides various indices measuring different cognitive functions as follows: verbal comprehension, - 122, in the superior range; perceptual organisation 129, superior; working memory 122, superior; processing speed 140, very superior. He shows particular strength in processing speed compared to other intellectual abilities.
- Memory functions, using Wechsler Memory Scale 4, provided a comprehensive assessment of memory function with a number of subscales, or indices, reflecting main aspects of memory. His verbal memory was average, his visual/spatial memory was high/average, his immediate and delayed memory were around the cut off between average and high/average. Overall, his memory functioning was below that predicted from his, very superior range, intellectual functioning.
- Executive functions include the ability to inhibit inappropriate modes of thought or action, to switch between appropriate ones, developing strategies to deal with novel problems, and the ability to generate material. They are used in planning activities in every day life and ensuring efficient use of mental resources. His problem solving and shift abilities were also tested using the Brixton test. He showed across these functions a level of performance consistent with his high intellectual level. His response inhibition was tested using the Hayling test. His performance was good. Verbal generation was tested. He showed some weakness in this area, being below average.
- Mood. His levels of anxiety and depression were assessed using a screening questionnaire. He showed anxiety and depression within normal limits.
- In summary, he shows: very superior intelligence with strength in processing speed; a mildly but significantly reduced memory, particularly from verbal material; executive functioning is consistent with intellectual functioning; there was no increase in depression or anxiety.
- Professor Morris compared his assessment with that conducted by Dr Connolly. Indices for intellectual functioning were higher in his current assessment. Dr Connolly, for memory functioning, found the performance to be between average and just within the superior range. She conducted only half of the memory tests, one of which was compromised by testing at the end when Claimant was unable to respond. In Professor Morris's opinion, pro-rated index scores, as used by Dr Connolly, are not meaningful where only single tests have been conducted and should not be calculated. He would be cautious about making comparisons between memory test results and estimates of intelligence using Dr Connolly's data.
- In Professor Morris's opinion, on balance, the assessment indicates impaired memory in the context of high intellectual functioning as reflected in his level of occupational attainment. In intelligent people, used to higher level cognitive functioning, a weakness in memory, though still within average range, is noticeable and potentially debilitating. The Claimant's verbal fluency was reduced, which would make him seem less on the ball. Nevertheless, his working memory and processing speed were at a reasonable level. The witness accounts of his overall symptoms are consistent with his findings and there is no suggestion of fabrication. His fatigue and headaches are likely to exacerbate cognitive symptoms.
- By reference to the length of his PTA, the Claimant would fall within a formulation of "technically severe brain damage". That is not inconsistent with his only having mild neuropsychological impairment. In the context of an intelligent person, using a high level of intellectual aptitude in their work, mild neuropsychological impairment can have a substantial effect on capability.
- The cluster of cognitive symptoms and behavioural changes described is common in people who have sustained brain injury. Alternative explanations, such as psychiatric disturbance, including anxiety disorder, become less cogent in this case following the successful treatment for his psychological symptoms. Recovery from anxiety disorder has not been accompanied by an amelioration of his cognitive symptoms and behavioural and personality changes. On the alternative diagnosis of "post-concussional syndrome" suggested by Dr Connolly, Professor Morris does not concur with this diagnosis. The majority of people with PCS recover in the first year. Only in a small minority do symptoms last for years and they may be permanent.
- In his second report Professor Morris comments on 3 matters raised by Dr Connolly. The first concerns the issue of severity based on the length of PTA.
- Professor Morris explains that each of Mr Price, Ms Levett and Dr Allder conducted their assessments thoroughly and came to approximately the same conclusions using the Russell criteria based on the length of the PTA being greater than 24 hours. Dr Connolly provided a different formulation, without suggesting a specific length of post-traumatic amnesia. She suggested it was "brief" and used a definition of mild traumatic brain injury in which the criterion of a PTA of less than 24 hours was indicative. Professor Morris noted that Professor Trimble had asked some questions, but not enough to be viewed as a proper PTA assessment. He noted that Professor Swash had recorded the Claimant as having no recollection of events for some two weeks, but did not do a formal PTA assessment.
- Reading all these accounts Professor Morris was more persuaded that the length of PTA was greater than 24 hours. He relied on Mr Price, who had great experience as a neurosurgeon with extensive experience of working with people with head injury.
- The second issue is whether Professor Morris's assessment suggests memory disorder.
- Professor Morris's principal clinical duties for 24 years have involved conducting neuropsychological assessments and drawing neuropsychological conclusions for patients with suspected neurological conditions, referred by neurologists and neurosurgeons.
- He notes that Dr Connolly suggests they should focus on his neuropsychological findings, with which she agrees. It follows, he says, that Dr Connolly's conclusions in her main report on memory ability should be ignored.
- In her supplementary report Dr Connolly had interpreted Professor Morris's data as indicating that the Claimant's memory scores were within the range one might expect, given his level of intellectual functioning. That differed from Professor Morris's conclusion. He says that Dr Connolly erred by reducing the number of intellectual test scores by half when she calculated the Claimant's overall intellectual functioning. She had used his data but had focussed on the General Ability Index. This resulted, in Professor Morris's opinion, in an underestimate of the Claimant's intelligence which, Professor Morris says, undermined the validity and reliability of Dr Connolly's conclusions. They minimised the difference between the Claimant's memory and intelligence assessments and so underestimated his memory weakness.
- In general, Professor Morris contends that the more intellectual tests administered, the greater the validity and reliability of the test results. Dr Connolly did the opposite by using the GAI rather than the Full Scale Intellectual Quotient. Professor Morris acknowledges that Dr Connolly explained that the intellectual tests scores which she removed from her assessment have to do with working memory and processing speed. He also acknowledges that the relevant guidance suggests that those tests should not be used to assess overall intelligence because the results from them are sensitive to brain injury and so may contaminate the overall assessment of intelligence. He says that, in this case, this concern does not arise because there was no compelling evidence that the Claimant performed poorly on tests of working memory and processing speed. His indices on these two tests were, respectively, "superior" and "very superior". There was no reason, therefore, to discard this data in calculating the Claimant's level of intelligence as potentially distorting the data by reason of the brain injury whose existence was in issue. It was more appropriate, in his opinion, to use the full scale IQ which, when compared with his memory scores, demonstrates his weakness in memory functioning.
- The assessment of intellectual function forms a base line comparison against which to compare other functions. The default position is that a person's memory function will approximately match their intellectual function. If it does not, but is lower, then there is an issue to address. Beyond that, it is appropriate to look for other evidence that might support, or contradict, the conclusion. It is in that exercise that the person's education and occupational attainment is important. In the case of the Claimant, his occupational history indicated high executive achievement in a series of demanding roles which would have needed good memory ability. There is no indication that he had any relative memory weaknesses before the accident. Professor Morris has seen many intelligent, high-functioning, patients who have developed specific weaknesses in different areas of cognition. Whilst their weak functions are still fairly good, e.g. average, the relative discrepancy between their weaker functions and their overall superior level of pre-morbid IQ is frequently the cause of significant disability in a work environment. Neuropsychologists may be confused in thinking that, because a person's function might be "average" it is "normal" because most people have this level of ability. However, it is not "normal" in the individual who is used to performing at a superior level in his, or her, workplace.
- The third issue is whether the Claimant's complaints of memory difficulties match his test memory performance?
- In Professor Morris's view the Claimant's complaints of memory difficulties match his recorded memory function. It is a matter of judging, by reference to degree and frequency whether memory lapses, of a type which most people experience in everyday life may, in an individual case, denote a memory deficit. Professor Morris' view is that the Claimant's descriptions of memory lapses are in line with his assessment of his neuropsychological profile, taking into account reduced efficiency due to factors such as fatigue.
- The fourth issue is whether the cluster of symptoms can be interpreted as due to brain injury?
- Professor Morris says that a patient can have a cluster of symptoms and there may be multiple causes for these symptoms. Different causes may result in the same symptoms. In orthodox clinical practice this is characterised as the problem of "differential diagnosis". Symptoms relating to brain injury can overlap symptoms relating to anxiety disorder. The orthodox approach, where a treatable condition, in this case anxiety, has been successfully treated, but where other symptoms remain, is to treat the case as one where differential diagnosis is appropriate. By the time he saw the Claimant, his anxiety had been successfully treated and he was not depressed, yet symptoms, which relate to the effects of brain injury, remained. The question is whether these symptoms can be explained as due to post-concussional symptoms or to enduring brain injury. That is a matter of clinical judgment. The length of PTA and the enduring symptoms are significant features, particularly as the vast majority of people with post-concussive syndrome recover in the first year. On balance, Professor Morris's view is that the cause of the Claimant's persisting symptoms is brain injury of an enduring nature.
- Professor Morris notes that Dr Connolly indicates that the Claimant's belief that he has brain damage is making his recovery more difficult. Professor Morris points out that, whilst this is a feature that has been clinically observed, the, converse, damaging effect of a clinician wrongly telling the patient their problems are psychological is also frequent in clinical practice. It is important to get the diagnosis correct.
- Professor Morris's third report is dated 29th October 2014. He has viewed the film clips of the surveillance and of the Claimant's personal diaries. In each case he has not observed any activity which is inconsistent with his understanding of the Claimant's neuropsychological condition and his claimed everyday functioning.
Professor Morris in cross-examination
- On the use of FSIQ as opposed to GAI, he did not see the rationale of depriving himself of the use of the maximum information for no good reason, which would be the case where short term memory and speed of information processing were not considered where there was a no risk that their inclusion would potentially distort the results.
- He explained the "frontal lobe paradox". That arises where multitasking, planning and sequencing in everyday life may be affected, so as to give rise to a cluster of symptoms, even when the neuropsychological tests may appear to denote a normal level of performance when measuring these attributes.
- His assessment on the Claimant was conducted between 10.30 and 4.30. There had been an hour's break for lunch. They also had little breaks during the assessment. He did not think it necessary to make any PTA assessment as one had been done by Mr Price, Ms Levett and Dr Connolly. He did not ask about the Claimant's pre-medical history, though he had access to his medical records.
- The Claimant's anxiety related symptoms had been treated by Ms Levett. He did not consider the persisting residual symptoms were, on balance, to be explained by psychological causes.
- He agrees that there is a body of opinion which accepts that a cluster of post-concussive symptoms may have a psychological derivation and that, for the small patient group whose post-concussive psychological symptoms last longer than a year, it is likely that they will continue to have those symptoms.
- Dr Connolly provided a report dated 7th October 2013. She offered the following conclusions in summary "
Mr Siegel sustained a concussion and is experiencing persisting, post-concussive, symptoms. It is my opinion that the symptoms Mr Siegel now reports are now maintained by psychological factors and could be significantly alleviated by appropriate treatment
I would expect him to return to work successfully at a similar level to his pre-accident employment."
- The body of her report sets out her description of the accident and initial care, refers to the GP notes since the accident, refers to the reports of other experts, including Mr Price who had diagnosed the Claimant with a diffuse brain injury, and refers to Ms Levett.
- Dr Connolly interviewed the Claimant and conducted a neuropsychological examination on 6th September 2013. He was polite and cooperative. He found the assessment tiring and, towards the end, he reported experiencing a severe headache. He took a couple of breaks during the assessment. She had taken a history of his education and occupation, his previous medical history, and had considered records from his previous employer HP.
- She set out the psychological test results, again noting that he became tired as the session progressed.
- She applied a test of pre-morbid functioning and produced predicted scores: full scale IQ - superior; working memory superior; processing speed - high/average; immediate memory - high/average; delayed memory high/average; working memory high/average.
- Applying WAIS-1V, he had a full scale IQ of 117- high average. His separate index scores were all high/average, save for verbal comprehension which were within the average range. The only inconsistent score comparing his actual scores and the predicted ones was in verbal comprehension.
- On memory he completed some subtests for the WMS-IV but was experiencing a headache and was keen to finish, therefore she pro-rated his scores. They indicated that his immediate memory index was superior, his auditory memory index and visual working memory index were within high/average, his visual memory index was low/average and his delayed memory index was borderline.
- Comparisons between his general intellectual functioning and his performance on tests of memory indicated a predictable degree of variability. An analysis of the discrepancy between his predicted memory index scores, derived from WAIS-IV, and his memory index scores, showed that only one score was not significantly different from what would have been predicted. His visual working memory index was within the predicted range but, of the remaining four comparisons, two were significantly higher than predicted and two significantly worse. This was an unusual pattern of scores in neuropsychological terms. The significantly worse scores were: visual memory and delayed memory. Taken at face value these might indicate a higher than expected rate of forgetting, but the delayed recall tests were the last ones attempted. By then he did not want to undertake any more assessment because of his worsening headache and fatigue and his wish to leave to catch a train. There were a number of hypotheses to explain these weak delayed memory scores namely:
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.
- In respect of executive functioning, his performance on the primary measures was very good, lying either in the high average or superior range.
- She set out his past mental health history, as reported by him, his recollection of the accident and its consequences. which included his return to work and his symptoms since the accident. He gave an account of headache, fatigue, irritability, and problems with multi-tasking, short-term memory and working memory (that is: not recognising people who worked for him, people's names, roles and so on), though no problem with people he knew before the accident. He could also forget what he is saying in the middle of a sentence, he could appear garrulous and, at times, rude, causing tension between him and his wife. He also reported problems with logical sequencing, geospatial awareness, difficulty in picking up non-verbal clues, lack of empathy and marital tensions, but he said his mood was okay. He had previously had depression and knew what it was like, but he was not now depressed. He also said he had experienced PTSD for which he was being treated successfully and now feels much better. He had been learning coping strategies with Ms Levett.
- Dr Connolly set out her formulation. The Claimant's reports that his memory was in snapshots after the index accident would be accounted for by the pain and shock arising from the accident and indicated that any period of PTA was very brief. She stated that PTA is a period of time following a head injury where a person seems to be aware of things about them, but may be confused or disoriented, may exhibit bizarre or uncharacteristic behaviour, may not be able to remember ordinary things or conversations. It is a transitory phase. Its length is defined as the time between injury and the point at which a person regains continuous memory. PTA is one indicator of the severity of a brain injury.
- Good practice dictates that multiple indicators are taken into account when assessing the severity of a brain injury. The definition of mild traumatic brain injury, recommended by the WHO, is an acute brain injury resulting from mechanical energy to the head from external forces. Operational criteria include:
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.
- She concluded that, according to that definition, the Claimant sustained a mild brain injury or concussion.
- She said the symptoms he describes experiencing in the time after the accident were all common symptoms of concussion or mild traumatic brain injury. The process does not lead to permanent change, but the time for return to normal cerebral function is within days or weeks. The mechanism of injury does not lead to permanent damage to the brain. Generally, symptoms fade as the recovery occurs, however, some people's symptoms persist beyond this period and this is the case for the Claimant.
- Evidence shows that symptoms which persist beyond the expected recovery course of mild traumatic brain injury are non-specific to mild brain injury. These symptoms are often associated with difficulties which do not involve damage to the brain. The evidence suggests the development and maintenance of persistent post-concussive symptoms are more directly a consequence of psychological, psychosocial, and other factors which are not specific to mild traumatic brain injury. These factors are, therefore, amenable to change through psychological intervention, such as cognitive behavioural therapy.
- Her opinion was that the Claimant was experiencing persisting, post-concussive, symptoms, which are now a result of psychological causal factors. The Claimant is more vulnerable to these difficulties by reason of his past history of depression, the ongoing medical legal process, and the attribution of his difficulties - he was told by his barrister in 2010 that it was likely he had sustained a permanent brain injury as a consequence of the accident, a view reinforced by the opinion of Mr Price, in diagnosing the Claimant with a diffuse brain injury.
- Given the Claimant's belief, recovery would be more difficult, but Dr Connolly was of the opinion that he could make significant recovery with appropriate psychological intervention. She recommended an allowance for 30 sessions with a clinical neuropsychologist. With that support, the Claimant would be able to work at the level he had achieved prior to the accident.
- Dr Connolly's second report is dated 9th May 2014. She had received additional material: the reports of Professor Swash, Professor Trimble and Professor Morris, as well as employment reports of Mr Evans and Mr Burden and the Claimant's employment records from HomeServe.
- Dr Connolly notes that the Claimant apparently told Professor Swash that he was unable to recall anything from just before the accident until some two weeks later and that he did not know if he had struck his head. Professor Swash had also noted that airbags were deployed and that no head injury was noted. He had opined that, given these factors, he was surprised by the severe decline of the Claimant's neuropsychological functioning. Professor Swash had also suggested that a lengthy period of post-traumatic amnesia was extremely unlikely and had raised the possibility it might be factitious. Professor Swash had opined that there must be some doubt whether the Claimant's symptoms can truly be related to brain injury or might have a psychological basis.
- Professor Trimble had, on the available evidence, offered his opinion that there was no evidence of a head injury but that the Claimant had a propensity to develop psychiatric difficulties, commenting particularly on lengthy retrograde and post-traumatic amnesia after a minor accident in 2008.
- Professor Trimble had opined that the Claimant's symptoms did not amount to a diagnosis of PTSD as the index accident would not have been judged life-threatening.
- Dr Connolly reviewed Professor Morris's report of 28th February 2014 in which he suggested that the length of the PTA should result in a diagnosis of a "severe brain injury" and that the cluster of cognitive and behavioural symptoms is common in people who have sustained a brain injury. Professor Morris did not accept psychiatric disturbance as an explanation because treatment for anxiety had been successful, yet the Claimant continued with symptoms. He also considered the diagnosis of post-concussion syndrome unlikely because the majority of people with this disorder recover within the first year.
- Dr Connolly compared their neuropsychological assessments. In terms of general intellectual functioning, Mr Siegel's performance in the working speed index was very significantly higher, as measured by Professor Morris. His verbal comprehension index was also better. In Dr Connolly's opinion the higher results should stand.
- She also noted a degree of variability between the scores on the WMS-IV memory test. She agreed with Professor Morris that, because of the elements of headache, fatigue, and desire to leave to catch a train, the scores he had obtained with the Claimant in this respect were likely to be more representative. Thus, she compared the WAIS-IV data with the WMS-IV collected by Professor Morris.
- She says it is possible to calculate whether memory scores are different to what one might expect, based on a person's intellectual ability, by using norms calculated across both sets of tests. Dr Connolly did this using the GAI score, a measure which is not dependent on working memory or processing speed. This is considered to be a fairer approach, as working memory and processing speed are particularly vulnerable to brain injury and including them might distort the result. On that basis, the Claimant's auditory memory index is a little inefficient, but his other memory scores are within the range one might expect, given his level of intellectual functioning. It is not the case that individuals who have superior intellectual functioning have, by default, superior memory functioning.
- She notes that Professor Morris summarised his assessment as follows:
"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."
- She also notes that Professor Morris refers to the Claimant experiencing "impaired memory in the context of high intellectual functioning". Dr Connolly comments that the Claimant did not, in fact, exhibit impaired memory. His lowest memory scores lie within the average range. She notes that Professor Morris referred to the impact that weaker functioning, albeit within normal limits, can have on those with high intellects who make great demands on their cognitive functioning. She did not dispute that this is the case. It was not, however, the situation which the Claimant was describing. His memory problems were: not being able to remember anyone's name in the office, or not being able to remember routes within his home city.
- Professor Morris had commented that the Claimant's verbal fluency was reduced and that this would translate to him being less able to access verbal material when not well cued. In Dr Connolly's opinion that was an over-interpretation of the data, given that the Claimant performed within normal limits on this test, which measures an ability to generate words rather than access them. Professor Morris's data demonstrated that the Claimant's working memory was superior and his processing speed was exceptional.
- On executive functioning, Dr Connolly agreed that formal testing is complicated and that passing formal tests does not necessarily mean that one has intact executive functioning. Professor Morris had suggested that more reliance be placed on everyday performance and self, or witness, accounts of such abilities, which Professor Morris stated were consistent. Dr Connolly says, however, that Professor Morris does not consider whether there were other explanations for the patterns described by witnesses.
- She considers the cluster of cognitive symptoms and behavioural changes, which Professor Morris commented is common in people who have sustained brain injury, and considers Professor Morris' argument dismissing psychiatric disturbance as a cause because the Claimant has been successfully treated for his anxiety disorder, yet is still exhibiting symptoms. Dr Connolly says it is important to note that the cluster of cognitive and behavioural symptoms described is not specific to brain injury but also occurs in other situations, such as pain, trauma without brain injury, and psychiatric disorder such as depression. Where they occur after a head injury they are often referred to as post-concussional symptoms which may appear for a number of reasons. These symptoms are non-specific. There is now a large body of evidence describing the cause of such persisting post-concussional symptoms as psychological and, in her opinion, this is the prevailing view amongst neuropsychologists. There is also a significant body of evidence discussing the negative impact of being told one has a brain injury when one has not.
- Accordingly, the continuing difficulties exhibited are not evidence of brain injury. He has received some treatment for anxiety but still exhibits psychological difficulties. She refers to Professor Trimble's opinion that they are the consequences of anxiety. The Claimant has been told he has a brain injury from which he will not recover. In Dr Connolly's opinion, if the Claimant were given an alternative, and more accurate, formulation of the cause of his symptoms and received further psychological therapy, he could expect some further significant recovery.
- She had, in November 2013, opined that the Claimant suffered a mild brain injury or concussion based on the statement within his medical records that he had suffered a head injury and concussion. In the light of Professor Swash and Professor Trimble's conclusions that he had not suffered a head injury, she deferred to them over that diagnosis. If he did not suffer a concussion then it is important to consider alternative explanations for the symptoms.
- This cluster is non-specific and has been observed to occur in a number of situations, including following traumatic experiences where no head injury occurred. It is clear that the Claimant is vulnerable to psychological disorder from his history of depression, his experience of disorders, such as irritable bowel and his previous responses to dramatic events such as the minor car accident. In addition, past references to tunnel vision and headaches are related to psychological difficulty rather than organic difficulty. On balance, therefore, given the opinion of Professors Swash and Trimble, her opinion is that the origin of the Claimant's symptoms is a psychological response to the accident.
- Dr Connolly, in cross examination, said that her assessment of a "very brief" period of post-traumatic amnesia meant less than 24 hours duration. When taking the Claimant's account, she was aware that he had already been through the process at least twice before. As a result his responses felt rehearsed rather than spontaneous. The current constellation of symptoms did not amount to a "syndrome" as there was no single underlying cause. The body of clinical evidence she had access to suggested that such a cluster is seen after an event of trauma, whether with or without a brain injury. Reports of such symptoms had been received from a range of individuals including those with previous depression, anxiety, as well as students under pressure.
- A lot of work is being done trying to untangle the "iatrogenic effect" that is, why do symptoms persist? Generally, with post-concussive symptoms they do not persist beyond three months. Some do. The question is, why do they persist? Initially, she had said that the symptoms were post-concussive but, having read Professor Trimble and Professor Swash, she deferred to their expertise on that issue.
- She used GAI, as is indicated in the manual, to obtain a predicted measure of assessment against which to compare the actual assessment on the tests.
- She acknowledged that, in relation to post-concussive symptoms, she was unable to identify what were the mechanisms causing it and that no one can. The evidence from the literature is that these symptoms have been observed in many studies not specifically linked to brain injury.
Dr Allder's written document
- Dr Allder produced an updated medical opinion to deal with matters raised by Professor Trimble in his written document. The mechanism of injury was a rapid onset acceleration of the brain, the acute symptoms included symptoms that were neurogenic in nature, i.e. visual symptoms, headache, dizziness and nausea. The duration of his PTA was over 24 hours. Loss of consciousness is a poor guide to the presence of traumatic brain injury. Dr Allder refers to a 2011 publication in which the following statement appears
"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."
- From his own direct experience, attempts to correlate lesions which are visible on current imaging modality, to psychological dysfunction, have proved disappointing. The explanation offered is that the clinical deficits relate to a more general compromise of the integrity of the underlying white matter which may connect topographically distinct regions. He states that significant PTA is often detected in patients with an otherwise normal Glasgow Coma Score, no overt evidence of confusion, and normal brain imaging. He refers to 2 publications in that respect. He re-emphasises that the clinical syndrome of DAI is highly variable.
- On functional amnesia: this is a non-specific term used where the presence of amnesia appears out of proportion to the injury sustained. In the present case, the head injury of the Claimant is sufficient to explain the degree of amnesia he has described. Therefore, to suggest a diagnosis of functional amnesia is inappropriate. Furthermore, the Claimant did not exhibit symptoms suggestive of a significant co-existing, severe, acute, stress response, which would be expected if dissociation was the basis of the amnesia. He has not, in his many years of clinical practice, ever seen a case of functional amnesia triggered by a head injury.
- In his opinion the presence of the neurogenic, physical and cognitive symptoms, described as a cluster or "a full house" of symptoms, strongly suggests the probability that the Claimant has developed a significant subtle permanent closed brain injury, secondary to diffuse axonal injury. The correlation between the chronic, physical and cognitive symptoms suffered by the Claimant and diffuse axonal injury is well established. He sets out a table which identifies a series of neuro behavioural sequelae which are common in, amongst other things, traumatic brain injury taken from a 2011 publication. The plausibility of the Claimant's outcome, following this type and severity of closed head injury, is well established in the existing literature.
"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)
- Dr Allder explained that diffuse axonal injury is multifocal and patchy which is why the symptoms exhibited are so variable as between different individuals.
Submissions, discussion and conclusions
- This part of my judgment is set out in ten parts. They are, respectively:
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
- The Claimant's case is that the cluster of enduring physical, cognitive, and behavioural symptoms was attributable to a diffuse axonal injury (DAI) to his brain, brought about by the acceleration/deceleration forces applied to his head in the car accident. The fact that these changes were at a microscopic level did not render them inconsequential or non-existent. Rigorous methodology, applied by the Claimant's experts in reaching their respective diagnosis/formulations, support the Claimant's case.
- The Defendant's submissions are that he accepts that the Claimant sustained a minor whiplash injury in the accident but rejects the contention that the accident gave rise to DAI. The Defendant's case is that the Claimant's reported symptoms of headache, fatigue, memory loss, and so on are psychologically derived but that his headache may also be due to recurrent migraine which pre-existed the accident.
- It is specifically not the Defendant's case that the Claimant is a malingerer who has invented a false claim. It is the Defendant's case that the Claimant has persuaded himself that his symptoms have been caused by brain damage, whereas that is not the case. Because he is in denial of the true position, he has, on occasions, sought to play down the significance of evidence which contradicts his case. This, coupled with a natural tendency to exaggerate, both in behaviour and use of language, results in him seeking to paint a worse picture of his condition than is the case.
ii) My assessment of the lay witnesses
- The Defendant calls into question the reliability of the Claimant and Mr Guile who was called on behalf of the Claimant. Other than that, the Defendant accepts that the lay witnesses called by the Claimant were truthful and were doing their best to assist the court. The Defendant contends that, save for Amber Patterson and Matthias Ress, the lay witnesses called by the Claimant can assist only to a limited extent, reflecting their infrequent contact with the Claimant, its limited duration and their unfamiliarity with his prior medical history.
- There is a conflict of recollection between Mr Guile, called for the Claimant, and Mr Parry, called by the Defendant, on an important issue:- was the Claimant on the point of being removed from the Aviva contract, because of complaints by his colleagues and the client about his behaviour, before the accident? The Defendant invites me to disregard Mr Guile's evidence that he was not, as being partial. Mr Guile volunteered his services as a witness to the Claimant when he was informed by the Defendant that he was not required by them, they having issued a witness summons.
- The Defendant contends, for the reasons summarised above, that the Claimant is not a reliable witness, though no suggestion is made that he has deliberately sought to mislead the court.
- The Claimant contends that the Defendant is not a reliable witness. His witness statement was dated very shortly before the trial. He is trying to recollect events of almost 5 years ago. I am invited to accept, as more accurate, evidence of the nature and seriousness of the accident as reflected in contemporaneous documents rather than inferences drawn from the Defendant's recollection.
- The Claimant contends that the witnesses called by the Defendant who were or are employees of HP: Mr Parry, Ms Ben Fredj and Mr Waterfield, are not reliable witnesses. It is contended that their evidence is coloured by a degree of animosity and/or defensiveness which is a hangover from the contentious litigation brought by the Claimant against HP in the United States in which each of their positions was exposed to criticism by the Claimant and which was settled, without admission of liability, for a significant sum plus discharge of the Claimant's costs by HP.
- The Defendant, by contrast, invites me to accept their evidence as truthful and reliable as coming from witnesses who have no current axe to grind.
- I find that the lay witnesses whose evidence is accepted as honest and reliable should be given significant weight. They are witnesses from different parts of the Claimant's life and speak consistently about the range of changes in his behaviour and abilities which they observed in the period following the accident. I accept that their evidence is limited to the contact which they had with him, but their consistency with one another and with the Claimant's case lends their evidence significant weight.
- I regard the evidence of Mr Ress as important evidence relating to the deficits from which the Claimant suffered during a significant period when Mr Ress was working closely with the Claimant, who was his immediate manager. Mr Ress was, on the issue of headaches, able to compare what he observed and heard from the Claimant with his personal experience of his wife who suffers from migraine. Mr Ress's contact with the Claimant only commenced in 2011 when the Claimant was employed with T-Systems. Accordingly, he cannot compare the Claimant's performance and abilities pre- and post-accident but it is significant evidence from someone who worked closely with him over a significant period of time and who was in a position to observe the way in which the Claimant's performance was affected by the symptoms of which he complains and the ways in which the Claimant sought to mask those deficits from his managers.
- In my judgment the evidence of Mr Guile was both important and impressive. His evidence, in particular concerning the periods prior to and immediately after the accident, is consistent with that of the Claimant and consistent with the contemporaneous documentation. I reject the contention that Mr Guile was partial to the Claimant in his evidence. On the contrary, it is clear that Mr Guile took a difficult decision about the Claimant following the accident which was disadvantageous to the Claimant and which fractured their previous good relationship. They have not met or spoken for several years. Mr Guile impressed me as an insightful witness. He acknowledged that the Claimant was very angry with him for the course he had adopted and Mr Guile could understand why. However, he was clear why he took the decision to remove the Claimant from the Aviva contract and was careful and accurate, in his evidence, of what it was that had changed in the Claimant which made that decision the correct one in the interests of HP as well as in the interests of the Claimant's health.
- By contrast I found the evidence of Mr Parry and Ms Ben Fredj problematic. I was concerned that Ms Ben Fredj chose to exhibit to her witness statement an internal document dated August 2011 but failed to highlight a later document, dated September 2011, which was clearly unhelpful to the Defendant's case. It contradicted an assertion to be put forward by Mr Parry, and adopted by her, about the difficulties it was said the Claimant was giving HP prior to the accident attributable to his personality and how he rubbed up the wrong way members of his team and the client's staff.
- I was also troubled by this aspect of Mr Parry's evidence. He claimed, without any support from any HP internal documentation, that the Claimant's behaviour prior to the accident was problematic. That claim is contradicted by Ms Ben Fredj's September 2011 e mail. He claimed that Mr Guile told him the Claimant had sent him a number of abusive text messages and that Mr Parry had to discuss with HR the possibility of putting the Claimant on a performance improvement plan.
- Mr Guile had no recollection of any such abusive text messages being sent to him or of telling Mr Parry. Mr Guile denied that there were any problem between the Claimant and any HP employee, other than Mr McCormack with whom Mr Guile had dealt by removing Mr McCormack from the Aviva contract on the grounds that the personality clash between them was six of one and half a dozen of another. The Claimant had received from Mr Parry a satisfactory performance appraisal which is inconsistent with Mr Parry's evidence of developing problems involving the Claimant prior to the accident.
- In so far as there is a conflict of evidence between Mr Guile and Mr Parry and Ms Ben Fredj, in respect of the Claimant during the period immediately prior to and post the accident, I prefer the evidence of Mr Guile.
- I have no reason to doubt the truthfulness and accuracy of the evidence of John Waterfield. In my judgment, it is clear that, from the beginning of their working relationship from the 4th January 2011, Mr Waterfield was seeking to manage an employee who was potentially a litigant against HP, whether or not he remained employed by them. Mr Waterfield's dealings with the Claimant, in my judgment, were proper, but guarded, as that situation required. The Claimant chose to interpret this as HP failing to respond to what he regarded as reasonable requests. Ultimately he resigned for that reason, having lined up alternative employment before doing so, and made the claim against HP in the United States. I can understand why the Claimant might have reacted in that way, as did Mr Waterfield, but it does not make Mr Waterfield's evidence other than honest and reliable. However, in judging the significance of Mr Waterfield's evidence on the level of performance of the Claimant during the initial period he was his line manager, I have to take into account the limited contact he would have had and the ability the Claimant was developing to mask his deficits from his managers.
- In my judgment, Amber Patterson is an important and impressive witness. She was transparently honest and forthright in her evidence. She had no illusions as to the difficult features of the Claimant's personality prior to the accident, but she was very clear in her differentiation of his abilities and behaviour prior to and following the accident. In my judgment, her recollection of events was clear and reliable.
- I observed the Claimant giving evidence over a number of days. I agree with the assessment of him as garrulous and unable to keep to the point. He also had the tendency to be argumentative, but I reject the contention that he was exaggerating his symptoms or reinterpreting events so as to support his case in a way which was unwarranted.
- He was, on the contrary, anxious to ensure that the court had a full explanation of the events about which he was being asked and sought to place those events into context, sometimes in rambling and discursive answers. But I have no doubt that he was trying to be honest and helpful to the court whilst seeking to ensure that his evidence was put as fully and forcibly as he could manage.
- I also observed that he became markedly fatigued after giving evidence for a period of about 2 hours. Giving evidence over a number of days is undoubtedly a wearing and tiring process for anyone. However, the manifestations of his fatigue, which I observed, were consistent with the picture which his evidence and that of other witnesses had painted. I have no doubt that his fatigue was genuine and not staged. Similarly, I am satisfied that the video diary was genuine and not staged or exaggerated to support his case.
iii) Assessment of the accident
- There is no expert evidence on reconstruction of the accident. I have to rely on the evidence, such as it is, of the parties and the contemporaneous records and photographs.
- It is common ground that the Claimant was stationary immediately prior to the accident and that the damage sustained to the Claimant's vehicle and to the Defendant's vehicle is reflected in the photographs. They show a significant level of damage to both vehicles. It is also common ground that the accident was sufficiently serious for a paramedic to be summoned, then an ambulance, and then the fire brigade, as well as the police. It is also common ground that damage sustained to the Claimant's vehicle, a well loved Daimler, was of such an order and expense that it was written off by the insurance company. The estimated cost of the repairs was £6,200.
- The paramedic notes at the scene record no neck pain, no loss of consciousness, total impact speed 20 mph. Advice was given to seek medical help on abnormal signs. The box on the form recording whether the airbag had been deployed appears initially to have been ticked, but a line through that box indicates that it was not. The comprehensive list of work done and parts to be used, forming part of insurance claim resulting in the car being written off, includes nothing in respect of resetting the airbag. On the balance of probabilities, I conclude that the airbag was not deployed.
- The Defendant's witness statement, dated 28th October 2014, recollects that both vehicles were stationary in a queue of traffic. In his view, the impact was minor. There was some minor damage to the front of his vehicle. He spoke to the Claimant for some 10-15 minutes. The Claimant did not appear injured but was frustrated and angry that he had damaged his car. In his oral evidence, Mr Pummell said that he had not got out of first gear by the time he collided with the Claimant's vehicle, but he acknowledged that the paramedic had made a note of 20 mph as his speed at the point of collision.
- The Claimant's evidence was that he remembered being stationary in a line of traffic at a red light. He did not remember the collision. He did not recall the sound of the collision. He remembered hitting his head against the headrest and pushing against the seatbelt. He remembered leaning forward to the left to change the radio station immediately prior to the accident. He did not know if he had hit the car in front.
- In my judgment, this accident was a significant one. It caused considerable damage to both vehicles and necessitated the attendance of an ambulance and the fire brigade. A collision noted contemporaneously to be at the speed of 20 mph is not a mere bump.
- In my judgment, the accident is consistent with a mechanism of injury, described by Dr Allder relying on Smith and Meaney's 2000 article, where they conclude that
"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
- In the period following the accident the Claimant had significant contact with the medical profession arising out of the accident.
- On the day of the accident, he went to A & E in Norwich at 17.47 complaining of headache, gradually getting worse, tunnel vision, hazy vision, and cervical spine pain. His GCS score was 15/15.
- At 19.15 he described the accident briefly, that he had been sent home by the ambulance but had felt unwell again. He complained of tunnel vision and headache. He was admitted at 21.30 for neurological observation overnight. At 23.30 he was constantly on his mobile claiming he "was bored out of his mind". He was discharged the following morning with a diagnosis of head injury, whiplash type, with a neuro referral.
- On 20th November he was seen at the GP's in Birmingham for a whiplash injury and was medicated. On the 24th November he attended the GP's practice in Norwich where he reported he had been diagnosed with concussion and whiplash on his discharge from hospital. He was complaining of persistent headache.
- On 26th November, at 00.46 he arrived at the hospital complaining of headaches, tunnel vision, tingling on face and memory loss. He complained of persistent headaches since the accident, complained of loss of concentration and blurred vision. He had nausea but not vomiting. He was admitted.
- A head injury pro forma was completed. He had been admitted for observation pending CT of the head. In the pro forma the boxes for "loss of consciousness" and "post-traumatic amnesia" were ticked. The loss of consciousness was said to be a matter of seconds. Under the box, "neurological deficit", "tunnel vision" was entered. A CT scan was booked for 8.15am. At 10.40 am there was a verbal CT report of no abnormality. Under the heading "plan" the note appears "discuss amnesia with patient".
- The hospital sent a letter to the Claimant's GP on 27th November which referred to a "provisional" diagnosis of moderate head injury without skull fracture.
- On 30th November the GP records that he had a whiplash injury two weeks previously and that he had neuropathy over right C5-C6 nerve roots. He was given a medical certificate to the 14th December. On the 10th December a further medical certificate was issued for 4 weeks. The GP records that he said he had seen a neurologist and had been told that he had post-concussive syndrome.
- On the 18th January 2010 a further medical certificate was issued, backdated to 11th January. It was recorded that he was to be seen by a neurologist for the insurance company.
- On 26th May 2010 he was seen by Dr Corston, a consultant neurologist, who produced a report for the court. The Claimant told him the car was stationary, he was wearing a seatbelt, the car was fitted with headrests, he was leaning forward adjusting the radio at the time of the accident when another vehicle ran into the back of his car. He developed a sudden severe headache but did not know whether or not he hit his head. Paramedics arrived and an ambulance. He was checked out but not taken to hospital. Some 4 hours later he tried to read a newspaper but could not see it and decided to go to hospital. He was admitted overnight. He was told he had suffered concussion and whiplash. His wife picked him up the day after the accident. His headache continued. It became more severe and he went to hospital and again was kept in over night. He had a CT scan which was normal. He was unable to drive because of his headaches and a degree of confusion.
- He was subsequently signed off work for a month, then a further month. He was continuing to experience headaches but not as frequent as they were. He reported that his long and short term memory was very poor. It had a huge effect on his ability to do his job but it had improved to some extent. Sometimes he would forget where he put documents, or what conversations were about, or colleagues' names. His concentration was not particularly good but was improving. He had been in charge of 60 people at the time of the accident but his boss felt he was not doing his job properly and he was relieved of some of his responsibilities. He had difficulties with spelling. When he concentrated he got headaches and did not feel safe. For several weeks he had difficulty reading to his young daughter. Dr Corston gave an opinion that the Claimant had received a blow to his head but did not lose consciousness. He suffered from headache, poor short term memory, poor concentration, both of which were improving and had difficulty in spelling. Those were features of post-concussion syndrome. Dr Corston anticipated there would be continued improvement and that, on the balance of probabilities, the symptoms should resolve within 2 years of the accident. Dr Corston stated "he feels that the post-concussion syndrome had led to sufficient impairment of his cerebral function adversely to affect his ability to do his job". As a consequence his responsibilities at work were reduced and he felt he might be at risk of being redundant.
- In my judgment, these various contacts with the medical profession in the period immediately following the accident and in May 2010 are consistent with the Claimant having suffered from the cognitive symptoms of loss of short term memory, inability to concentrate and continuing headaches from a time very shortly after the accident. The A & E Registrar in the pro forma filled out on 26 November concluded that he had suffered a momentary loss of consciousness at the point of the accident and that he was suffering post-traumatic amnesia.
- At that early stage, he had received a medical opinion of having symptoms consistent with a post-concussion syndrome, symptoms of which should resolve within 2 years of the accident. The medical evidence is consistent with him having suffered an impairment of his cerebral function sufficient adversely to affect his ability to do his job.
v) Assessment of the Claimant's past medical records
- The Defendant invites the court to pay particular attention to the Claimant's previous medical records. It is suggested that the post-accident symptoms may be attributable to a recurrence of anxiety and anxiety-related symptoms which were a feature of the Claimant's medical history and that this history provides one basis upon which the opinion of Professor Trimble, that the symptoms currently suffered are psychological in origin, may be accepted as correct.
- The Claimant agreed that he has always been a worrier.
- He suffered a depressive episode in about 1986, when a teenager, during which he took an overdose and was detained in a mental hospital for two weeks.
- In the UK, his medical records show him complaining of tiredness and fatigue, though not depressed, in September 2003, in the context of a urinary tract infection. In November 2003 he was complaining of tiredness, said to have arisen in the context of frequent travelling to France.
- In July 2005, he complained to his GP of suffering from migraine and IBS.
- In June 2006, just before he was offered and began employment with EDS, he reported a panic attack to the GP. Shortly after having been employed by EDS he told Ms Levett he first developed shingles.
- In October 2007 he reported to his GP not sleeping and anxiety, in the context of having a high powered job in computers. Zoplicone was prescribed. In November 2007 he was reporting insomnia. In December 2007 he was referred to hospital for a colonoscopy. He was advised to relax. The colonoscopy was normal.
- In January 2008, in the context of having suffered a right shoulder injury and a recurrent problem with the left shoulder, he was reported to have anxiety. Following surgery on his left shoulder in March 2008, he developed pneumonia and began, what it is accepted was, a depressive period which started at the end of March 2008 and continued until September 2008. During that period he was depressed, suffering anxiety and panic attacks, had poor short memory, complained of a stressful job which made him feel exhausted, said he was subject to bullying at work by his boss, was not sleeping, was under pressure to perform, suffered low motivation, and was concerned about being made redundant.
- By August/September he reported being busier at work and was feeling much brighter.
- At the end of November 2008 there was a minor road traffic accident. He had not been able to sleep the night before and took two zoplicone. He reported having lost memory for several hours before and after the accident and he was rather anxious and complained of headaches. He was advised not to take zoplicone any more.
- After the 2009 accident he attended the GP for various complaints: back pain arising from heavy exercise; levels of cholesterol; pneumonia or influenza; a skin abscess under his chin; painkillers for his shoulders; and in June 2010 at the emergency department of his local hospital for vomiting. The Defendant contends that, as none of these relate to symptoms the Claimant says were caused by the accident, it was not until he obtained some legal advice on 25th October 2010, raising the question of a brain injury caused by the accident and referring him to specialists, that the Claimant's current crop of symptoms came to the fore.
- In July 2012, the GP noted that the Claimant was feeling low and emotionally numb. He referred to stressors including: the death of his mother; the break up of his relationship with his brothers; difficulties with his wife; and being diagnosed with diffuse axonal injury. His low mood continued through August 2012. He complained of feeling fatigued and sleeping little. By October 2012 he wanted to be referred to a private psychiatrist for ongoing depression. In the letter of referral to Dr Nasr, the GP noted that he had been depressed since June 2012: he was low in mood; emotionally numb; had lost libido; his mother had died a year ago; he leads a busy life; had a brain injury 3 years previously and dated his low mood from them.
- In December 2012, he asked for a repeat prescription of the anti-depressants. By March 2013 he was being treated by Ms Levett who had recommended coming off anti-depressants and taking time off work. The dosage was reduced and it was phased out. The Claimant was doing well and was no longer depressed.
- The Defendant's case is that the complaints the Claimant now makes are psychologically based. His psychological condition has always been such that they were likely to occur, in any event, as a consequence of upsets in life such as stress at work, his mother's death, his estrangement from his family, and other family bereavements. The medical evidence does not, it is contended, support any neurological basis for his present and persisting symptoms.
- In my judgment, there is a proper basis for concluding that the Claimant has been susceptible to anxiety and bouts of depression which may be attributable to life stresses such as insecurity at work and family tensions. However, the picture which emerges from his medical history, both before and subsequent to the accident, suggest that these episodes are rooted in particular events or contexts and that, ultimately, they respond to treatment. The issue in this case is whether the persistence of the cluster of symptoms for a period of years, interspersed with the bout of low mood/depression from which he suffered in 2012 to 2013, is explicable by a purely psychological explanation, one element of which is the Claimant's underlying susceptibility to anxiety and depression. A conclusion on that issue requires consideration of all of the evidence, in the light of the reports of the reports of the various experts from whom I have heard.
vi) Assessment of the medical and psychological experts
- I have received evidence from experts on neurology (Dr Allder and Professor Swash), on neuropsychology (Professor Morris and Dr Connolly), and gastroenterologists (Professor Silk and Dr Millar). I have also received evidence from Ms Levett, a consultant clinical psychologist, and Professor Trimble, a professor of behavioural neurology and a fellow of the Royal College of psychiatrists.
- Professor Swash, having conducted an examination of the Claimant, then considered the contemporaneous ambulance and hospital records as well as GP notes and the Priory Clinic letters. He considered the HP records and the Claimant's witness statements as well as Ms Levett's first report and the late Mr Price's report. He also viewed the video diaries.
- His position was simple and clear cut. There was no evidence of a head injury and therefore no evidence to support the suggestion that the Claimant had suffered a brain injury involving diffuse axonal injury.
- He considered the symptoms of tunnel vision, head ache and amnesia following the 2008 accident, in the absence of a head injury, to have been psychogenic.
- He considered that tunnel vision and severe headache sustained in the 2009 accident, without evidence of head injury or loss of consciousness, did not suggest an organic basis. The "full house" of ongoing neuropsychiatric symptoms were difficult to understand in the context of an, apparently minor, non-concussive injury.
- He stressed that tunnel vision does not have an organic basis. Headache may arise in the form of migraine or tension headaches, which were psychogenic. He agreed that post-traumatic amnesia was usually associated with brain injuries, ranging from mild to severe. He regarded the approach identified in Russell's textbook, as important. Much depended on how this amnesia was assessed. Asking detailed questions made it difficult to say when and where there was confabulation.
- Concerning the 2008 accident, he questioned whether taking zoplicone could have produced memory loss in a regular taker of that medication. It was odd that the Claimant told his wife he had an accident as he should have been amnesic, though Ms Patterson had said that the Claimant did not remember where their daughter was or whether he had dropped her off at school.
- He claimed that the reference to snapshots of memory might suggest learned behaviour from another expert.
- He stated there was a large amount of literature which suggested that minor concussive injury was not associated with DAI. He did not agree with the paper of Smith and Meaney. The "full house" of symptoms described by the Claimant would normally be associated with a very severe injury which would be apparent on an MRI scan. It was impossible for DAI to be causing all these symptoms with even a brief period of loss of consciousness and with no evidence on the MRI.
- He accepted that a lack of awareness of their deficits was common with closed head injury patients. In this case: the low speed of the accident; the absence of head contact, apart from with the head rest; a very brief, if any, period of unconsciousness; an ability to discuss things immediately after the accident; a deterioration noted months after the accident; the absence of evidence on the scans; were all factors persuading him that a DAI was impossible in this case.
- The Claimant contends that I should prefer the evidence of Dr Allder who not only conducts medical-legal work but is a clinician, up to date in the academic literature.
- He explained the mechanism of injury in the present case, referring to the article of Smith and Meaney. The extremely rapid acceleration/deceleration attributable to a significant rear-end shunt provides a mechanism of injury consistent with the development of DAI at the microscopic level.
- Dr Allder relied on the literature in support of his contention that surprisingly extensive DAI can occur even without a marked loss of consciousness.
- Dr Allder concluded that the percussive blow on the head rest was the likely cause of the immediate post-traumatic headache. Dr Allder explained that tunnel vision is commonly associated with headache, specifically migraine, which, in this case, would provide a realistic explanation.
- He also contended that the reported responses of the Claimant in the post-traumatic amnesia assessments, conducted by, respectively, Mr Price, Ms Levett and Dr Connolly were consistent with post-traumatic amnesia, a phenomenon associated with brain injury but not with psychogenic injury. He rejected Professor Swash's suggestion that the reported absence of memory after the accident was consistent with "functional" or psychogenic amnesia, which tends to produce a blanket memory loss without interspersed snapshots of vivid recall. The Claimant did not present with that pattern of memory. The durable snapshots of recollection are characteristic of post-traumatic amnesia. More snapshots in the early post trauma period is not inconsistent with DAI. The literature indicates that axonal pathology has been shown to develop over the course of hours and days following the injury.
- PTA in excess of 24 hours, indicating DAI, was consistent with a short or non-existent retrograde amnesia.
- Each of the cluster of enduring physical, cognitive and behavioural symptoms is linked to DAI to tracts within the white matter. An overlap with co-existing psychopathology was possible. Ms Levett's psychological treatment had brought about an improvement in the Claimant's psychological pathology.
- Dr Allder explained that the use of the word "severe" by reference to the duration of PTA of in excess of 24 hours was a technical classification. He contended that the Claimant's compromised sense of smell since the accident militated in favour of DAI being the explanation for the cognitive and behavioural symptoms because the same shearing forces capable of causing DAI were sufficient to cause partial shearing to the delicate fibres of the olfactory bulb, passing behind the frontal lobe.
- In my judgment, the evidence of Dr Allder is, on balance, to be preferred to that of Professor Swash. Unfortunately, there were errors in Professor Swash's reports. He failed to record that the Claimant had described snapshots of memory to him and his report had, erroneously, given a false impression of a total absence of memory for over two weeks. He also confused the accidents in 2008 and in 2009. In addition, he failed to reflect, in his report or in his oral evidence, on the guidance issued by the NHS in relation to the effect of zoplicone, to the effect that a person woken from a sleep induced by zoplicone can suffer amnesia. In my judgment, that was an obvious explanation for the period of retro and post-traumatic amnesia suffered by the Claimant in the November 2008 accident.
- In my judgment, Professor Swash, by being overly prescriptive, failed to engage with the, by now established, concept of microscopic DAI arising where the presently available scanning equipment does not reveal any damage to the white matter. In truth, the nub of Professor Swash's evidence was to the effect that, in his opinion, there was such a mismatch between: the symptoms now complained of by the Claimant; the nature and severity of the accident; the absence of immediate head injury; or loss of consciousness; or scans showing damage; that he had formed the view that the Claimant was not genuine in presenting his symptoms. In my judgment, his opinion was based on too rigid a view of the current state of knowledge of how, and in what circumstances, this form of injury can arise.
- Professor Morris combines clinical practice with an academic career, writing peer-reviewed articles and books as well as undertaking medical-legal work. His neuropsychological analysis caused him to conclude that there was a discrepancy between the Claimant's very superior level of IQ and his average delayed memory function. He acknowledged that the two do not necessarily have to correlate but that where, as here, the Claimant required a sustained high level of intellectual performance to undertake his work, the presence, post-accident, of an "average" delayed memory function was evidence of a significant deficit. He criticised Dr Connolly for the inadequacy of her initial testing. Dr Connolly accepted and acknowledged that Professor Morris's results were more reliable and should be utilised. He criticised Dr Connolly's use of the GAI as a measure of IQ in a case where the Claimant was a high performer, and, therefore, the accident had not affected the functions which would normally be excluded from measuring IQ as they might distort the results. In Professor Morris's analysis, he included all those functions. They provided more information on the true level of the Claimant's IQ.
- Professor Morris addressed the persistence of the symptoms at a stage after Ms Levett had successfully treated the psychological symptoms of PTSD and associated agoraphobia. His understanding was that the Claimant's anxiety disorder had been successfully treated and, whilst there may be residual symptoms, they were not potent enough to explain the cluster and severity of the Claimant's symptoms. That medical history would suggest, on the balance of probabilities, that the persisting symptoms were associated with brain injury and supported the formulation that the Claimant had been successfully treated for an anxiety disorder but persisted with a cluster of symptoms consistent with brain injury. The other explanations, that, on one basis or another, his symptoms were psychological in origin were not sufficiently potent and he would rule them out.
- Professor Morris was of the opinion that the extra effort required to compensate at work for the brain injury induced deficit, would give rise to fatigue. The brain would have to work harder. The patient would become fatigued, which would impact on his cognitive functions, setting up a vicious circle.
- Dr Connolly conceded that Professor Morris's results were more likely to be reliable than hers, given the circumstances in which her assessment was undertaken. Her initial diagnosis had been that the Claimant had suffered a concussion, a self-healing condition, but that psychological factors were responsible for his continuing symptoms. Having seen the reports of Professors Swash and Trimble, she deferred to them on whether or not there had been a head injury and that, in that case, the explanation for his symptoms would be that they were psychological from the outset.
- She was particularly forceful on the issue of the iatrogenic effect.
- She undertook a post traumatic amnesia assessment, though in her case she was aware that the Claimant had done this exercise on more than one previous occasion so, without attributing it as deliberate, she had the impression that the responses she was getting were rehearsed. She did conclude that there was an element of post-traumatic amnesia, but it was brief, less than 24 hours.
- She emphasised that there was a body of medical opinion that a persistent cluster of symptoms was observed after a number of different events - some involving trauma, some not, some based on anxiety, some on depression - so that such symptoms were not unusual amongst people who did not fit in to any medical category. The state of current research was not conclusive on why such symptoms persist, but it might relate to expectations. In cross-examination she was unable, as is anyone, to identify what the mechanism of the persistence of these symptoms might be.
- She maintained that her use of the GAI as a measure of IQ, eliminating the tests on working memory and processing speed, was in accordance with the guidance and that, in any event, the IQ and delayed memory quotient were within the same ball park. She did not, therefore, accept Professor Morris's point that a useful distinction may be drawn between persons whose pre-accident, required level of intellectual performance at work was high and those whose was not.
- She observed that the most prominent neuropsychological signs of DAI were related to processing speed and memory, particularly processing speed. She did not go so far as to say that a high level of processing speed excluded DAI, but emphasised that change to processing speed and memory were the cardinal signs of DAI. In the present case, there was no diminution in processing speed.
- Dr Allder, in his last report, responded that attempts to correlate visible lesions to a particular psychological dysfunction had proved disappointing. The explanation offered in the literature was that the clinical deficits related to a general compromise of the white matter which may connect topographically distinct regions.
- Dr Connolly's evidence was that up to 25% of the population might be expected to have a very superior level of IQ but have an average delayed memory score, so that the presence of those outcomes in Professor Morris's assessment of the Claimant did not, of itself, denote a deficit which had to be explained by an extraneous cause.
- Her conclusion was that the Claimant's history of difficulty with anxiety and depression made him more prone to suffering from those symptoms. She considered the symptoms had persisted because of information given to the Claimant, whose background, personality and history made him more susceptible to looking for those symptoms.
- In my judgment, both Professor Morris and Dr Connolly were genuinely seeking to engage with the issues raised by the other. The difficulty with the position of Dr Connolly is that she initially had proceeded on the basis that her formulation was rooted in an organic cause, a cluster of post-concussion symptoms, the continuation of which, beyond the normal period of about a year, was psychological. Once she abandoned that position, in deference to Professors Swash and Professor Trimble, her argument that, from the outset, symptoms were psychological became less convincing.
- On the other hand, Professor Morris provided a logical and, in my judgment, sensible, explanation for the discrepancy between the Claimant's very superior IQ and his average delayed memory score, given the intellectually demanding work he had undertaken successfully over a number of years. Furthermore, Professor Morris' formulation reflected more accurately the post-accident psychological history, whereby those symptoms which were psychological in nature were treated successfully by psychological treatment and yet the cluster of symptoms consistent with, and indicative of, DAI persisted.
- In my judgment, therefore, Professor Morris's formulation is, on balance, more likely to be correct than that of Dr Connolly. I do not reject her contention that there is a body of professional opinion which acknowledges the persistence of such symptoms where there is no evident cause other than a psychological one, but where, as here, there is a specific history which gives rise to an alternative explanation which more readily fits with the Claimant's circumstances, in my judgment, Professor Morris's formulation is to be preferred.
- Professor Trimble's evidence was to the effect that there was no evidence that the Claimant had suffered a head injury. His pattern of memories -adequate immediate memories and then patchy thereafter did not add up to someone who had suffered a severe head injury and had developed a PTA. If he had, his memory would be dysfunctional from the moment of the injury. He concluded that the Claimant's immediate, and islands of, memories did not add up to the kind of amnesia seen in head injury with structural damage to the brain.
- On the contrary, the Claimant had a propensity to develop psychiatric difficulties. His main symptoms were anxiety-related, falling short of PTSD. The cognitive problems - headaches, noise-sensitivity, irritability, mood-swings were compatible with anxiety-related disorder.
- In response to part 35 questions he said that patchy amnesia could occur but it was highly unlikely someone could have a cerebral injury of significance where there was: no loss of consciousness; a normal CT and brain scan; and a GCS of 15/15. He concluded that a number of the Claimant's symptoms had been driven by opinions expressed by Mr Price and Ms Levett.
- He said that damage to the white matter produced a different profile of behaviour to damage to the cortex. There was a slowing of mental processes and damage to the pathways that control motor function, expression and gesture. Such abnormalities had not been reported. The Claimant's responses remain superior.
- In response to my request for him to formulate the psychological condition which informed his view, he identified the two axes as "personality attributes and anxiety". His anxiety related to increased awareness of what is going on in his body and mind which provokes self-generated thoughts which, in turn, increase anxiety and bodily awareness. Initially, he was informed he had concussion, later he was told he had brain damage and became more fixated upon that idea.
- There were elements of Professor Trimble's evidence which were troubling. He seemed unable to comprehend the obvious difference between someone recalling an event, on the one hand, and, on the other, knowing that it had happened from it having been reported to them, even though they had no recall themselves. He also stated that, until it had been explained to him in court, under cross-examination and after intervention by the court, he had not understood that the characterisation of the Claimant's brain injury as "severe," because of the period of post-traumatic amnesia being in excess of 24 hours, was a technical description only. Professor Trimble seemed to have been wedded to the idea that what was being described was brain injury of a severity akin to that suffered by Michael Schumacher. He also seemed unable to comprehend the concept that the mechanism of injury being described by Dr Allder was the speed of a sudden and immediate acceleration/deceleration rather than a slow acceleration up to that speed. He sought to draw an unfortunate analogy with the speed at which Usain Bolt sprints, being well in excess of 20 mph, as evidence of the unlikelihood of the Claimant suffering a DAI as a result of this rear-end shunt, by a vehicle going at 20mph, giving rise to an immediate and sudden acceleration/deceleration of his head.
- Whilst it is not a matter which directly relates to the weight to be given to Professor Trimble's evidence, it is nonetheless the case that his evidence was combative and dismissive of that of other medical professionals who were not specialists in the same field as himself. He had particular problems with Ms Levett, to which I will return, but, in my judgment, his evidence was not given in a manner consistent with an expert witness seeking to engage seriously with evidence being put forward, particularly by Dr Allder and Professor Morris.
- In cross-examination, he accepted that the axes forming the basis of his conclusion that the Claimant's symptoms were all psychological in origin were not described in any of the disorders contained within DSM V. That is not determinative but it requires the court to view, with particular care, the contention that symptoms, which undoubtedly exist and which are consistent with the Claimant having suffered a DAI, are, nonetheless, not caused by such an injury but are attributable to psychological causes which are nebulous in their description.
- In this particular case, whilst acknowledging Professor Trimble's eminence in his field, I found his evidence to be less than impressive.
- I have to approach the evidence of Ms Levett with particular care. She is a member of the British Psychological Society and, as such, is able to practice professionally. She was also registered with the Health and Care Professions Council (HCPC) until 1st November 2013. On that date its conduct and competence committee decided that her fitness to practice was impaired and her name was to be struck off the HCPC register of practitioner psychologists, with a concurrent 18 month interim suspension order to cover any appeal.
- She exercised her right of appeal which was heard before Mr Justice Haddon-Cave on 24th April 2014. He dismissed her appeal, expressing himself at paragraph 72 of his judgment in the following terms:
"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."
- Ms Levett is appealing that decision to the Court of Appeal.
- I am informed that the British Psychological Society is in disagreement with the HCPC on this matter. It dismissed the complaints made to it. It ruled that the relationship at the heart of the complaints was not one of practitioner and patient and accepted that Ms Levett's characterisation of the relationship between her and the complainant was correct.
- The Defendant contends that those proceedings constitute evidence of a lack of objectivity on the part of Ms Levett. The Defendant accepts, through its witnesses, including Professor Trimble, that she is a talented psychotherapist who established a rapport with the Claimant which has helped alleviate some of his symptoms. However, the Defendant contends that she is a consistent advocate of DAI, or subtle brain damage, in circumstances where she can find no other explanation. It is said that, in her formulations of DAI, she has extended beyond the reach of her professional expertise. It is also said that her objectivity is called into question by the fact that she has acted both as treating psychologist to the Claimant and as an expert witness with obligations to the court. This is said to be particularly important where, as here, the Defendant's contention is that the Claimant's symptoms are caused by, or largely contributed to by, his belief in the diagnosis he has been given by others, including Ms Levett, of DAI.
- Having regard to the evidence of Ms Levett, Dr Connolly and the report of Mr Price, who conducted an examination of the Claimant in January 2011, I am satisfied that the process of assessment of post-traumatic amnesia undertaken by Ms Levett was appropriate and conventional. In each of the assessments of those three professionals, a history was taken from the Claimant of the period prior to and after the accident and each of them obtained a consistent account of no retrograde amnesia but snapshots of recall from the time of the accident for a period lasting several days before continuous memory was restored. In the case of each of them, they concluded that their assessment was consistent with the Claimant having suffered a post-traumatic amnesia, though Dr Connolly assessed that the period of such amnesia would have been very brief.
- It is common ground that Ms Levett, having reached a formulation which included symptoms consistent with PTSD and associated agoraphobia, was successful in treating the Claimant so as to resolve those particular problems within a short time of commencing treatment in March 2013.
- It is contended by the Claimant that she has used a process of functional analysis and that her formulation is consistent with that which was reached by Mr Price and the diagnosis made by Dr Allder.
- In my judgment, bearing in mind the caution that is necessary having regard to her current ambiguous professional position, I can find no evidence in the present case of Ms Levett being other than objective in her assessments or conducting her assessments otherwise than in professionally appropriate ways. The conclusions to which she has come are consistent with those arrived at by two neurologists. The initial report of Dr Connolly concluded that the Claimant had post-traumatic amnesia, albeit brief, and that he had suffered a concussive head injury, albeit post-concussive symptoms which were persisting by virtue of psychological factors.
vii) My conclusions on causation
- In my judgment, on the balance of probabilities, the Claimant has proved that his present and continuing cluster of symptoms is caused by DAI, sustained in this accident.
- I reject the Defendant's contention that, in the absence of evidence of head injury in the form of: no loss of consciousness; a normal Glasgow Coma Scale; and an absence of evidence of lesions from CT and MRI scans; a DAI is conclusively ruled out.
- In my judgment, there are a number of factors pointing towards there having been a DAI on the microscopic level, as described by Dr Allder and in the literature upon which he relies.
- First, in my judgment, the accident was not as minor as the Defendant suggests for the reasons I have explained above.
- Second, it is clear that, as early as the 26th November, the A & E department at the hospital had found evidence of loss of consciousness, albeit for seconds, and of post-traumatic amnesia. There is evidence in support of a conclusion of loss of consciousness from the consistent report of the Claimant of not having any recollection of having heard the bang when the accident occurred. That is consistent with a brief period of loss of consciousness at that point. It may have been such a report which prompted the note on the 26th November of loss of consciousness. Clearly, something prompted that record.
- Third, I am satisfied from the consistent accounts given by the Claimant to each of the experts, including Professors Swash and Trimble, of his snapshots of memory, that the assessment of him having post-traumatic amnesia of in excess of 24 hours, made by Ms Levett and Mr Price, was appropriate. I note also that Ms Patterson's evidence of his having demonstrated confusion over the period of days following the accident is consistent with an assessment of post-traumatic amnesia as described by Russell and Nathan in their authoritative textbook, as is the description of islands of memory within the period of time covered by the PTA.
- Fourth, the mechanism of the accident is consistent with DAI. A rapid acceleration/deceleration of the head, even without a concurrent blow. In any event there is evidence to support the suggestion that there was a striking of the Claimant's head against his head rest which may have informed Dr Connolly's assessment that the Claimant had suffered post-concussive symptoms. Professor Swash accepted it could have caused his immediate headache.
- Fifth, the cluster of symptoms of which the Claimant now complains is consistent with his having suffered a brain injury. Professor Swash appears to have acknowledged that and I am, in any event, satisfied that it is the case.
- I do not reject out of hand the alternative explanations put forward by Professor Trimble and Dr Connolly. The fact that the precise mechanism of persisting symptoms, post-concussively, may be unknown and the fact that Professor Trimble is unable to place the symptoms and his explanations within a specific psychological disorder does not, of itself, mean that these explanations are wrong. I accept that there are elements in the Claimant's personality and past medical history which might be thought to provide a basis for an explanation of continuing symptoms caused by psychological rather than psychical factors. Similarly, the concept of an iatrogenic cause for continuing symptoms, following a false report of a physical injury is, I accept, established.
- However, in my judgment, having reviewed all the relevant circumstances I agree with Professor Morris that, on the balance of probabilities, the cluster of persisting symptoms is caused by a diffuse axonal injury sustained in the accident and not by psychological causes.
- The anxiety symptoms, which undoubtedly existed and were described by Ms Levett, whether or not associated with the period of low mood which developed in 2012, have been successfully treated and, it is common ground, since that successful treatment in mid 2013 the Claimant is not suffering from depression or anxiety. In those circumstances, given the mechanism of the accident and of the potential injury, the likelihood of a brief loss of consciousness, the appropriate assessment of PTA of more than 24 hours and the consistent body of evidence, from a range of lay witnesses, of significant changes, physically, cognitively and behaviourally, from very shortly after the accident, I am satisfied that, on the balance of probabilities, these persisting symptoms were caused by DAI and are not psychologically based, whether from his previous personality and medical history and/or his being influenced by a false diagnosis of brain injury.
- Whilst not in any way binding on me, I am reassured that the conclusion to which I have come is similar to conclusions reached by other first instance Judges in the three decided cases to which I have been referred. Namely, Williams v Jervis  EWHC 2346 [QB], Clarke v Maltby  EWHC 1201 [QB], and Mann v Bahri in the Central London County Court claim 6B101555.
viii) My assessment of the employment experts
- There is a significant degree of agreement between Mr Evans and Mr Burden. Both agree that the Claimant demonstrated disinhibited behaviour throughout their respective meetings and that this is highly likely to inhibit his ability to perform the role of a senior manager in the UK. However, both agree that he has strong communication skills for the technology sector which set him apart from most individuals at his level. They agree that it is highly probable that these skills had a very positive influence in helping him rise to a senior management position within that industry. Those communication skills are sought after and provide excellent employment prospects, with quick progress to prominent positions.
- Both agree that a prolonged career break for convalescence would be likely to make it more difficult for the Claimant to return to a position in senior management. Any future employer is likely to want to understand the details behind a career break and would be concerned about employing someone who had suffered the prolonged symptoms experienced by the Claimant.
- Both agree that the income the Claimant received in his employment with T-Systems and HomeServe represent realistic figures of the minimum earning expectations for the period during which Mr Siegel would have remained in full time employment. They also agree that, at the age of 38, he was unlikely to have already reached his peak earning potential. That is likely to have been achieved between the age of 45 and 50. They both agree that he is a very capable practitioner in his chosen field and, if his career were uninterrupted, could have risen to a senior management position within a large and prominent organisation, though not destined to rise to the most senior post in the largest of organisations.
- The most significant areas of disagreement are as follows:
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.
- Mr Evans was subjected to criticisms in respect of his methodology and the contents of his report. It is apparent, comparing his report with a covert recording of the interview that, in certain detailed respects, the statements in the report are inaccurate as a reflection of the interview. It was further suggested that Mr Evans' approach was unstructured and lacking in professional rigour, as compared with that of Mr Burden.
- In my judgment, as witnesses, Mr Burden was the more impressive of the two. However, in considering which of them is more likely to be correct in the conclusions they have drawn, where they differ, I am more influenced by the content of their arguments rather than the way in which they gave evidence or particular passages in lengthy reports.
- I have no reason to doubt that each of them was giving an honest appraisal of the Claimant and his prospects had the accident not occurred and, to a limited extent, his employment prospects given that the accident had occurred.
ix) My conclusion on his employment prospects
- The Defendant contends that there is no continuing loss caused by the injuries sustained in the accident. It is said that there was no good reason for him to have left his employment in HP in May 2011. HP did not want to make him redundant and, according to Mr Waterfield, he was performing satisfactorily on the AON contract, producing proposals of satisfactory quality. He left, the Defendant contends, to go to an equally good job with T-Systems where he remained, performing successfully, until August 2013 when his employment was terminated in circumstances arising out of his prolonged period of absence undergoing treatment and his prevarication in providing T-Systems with evidence about his injuries. The Defendant contends that the short period spent with HomeServe, which was unsuccessful, was a reflection of his difficult personality when required to work alongside colleagues and that this had been manifested prior to the accident, in 2007 and he was required to be mentored after his disruptive behaviour at an HP course and in 2009 involving Mr McCormack.
- The Defendant relies on the agreed view of the employment experts that, even post-accident, he demonstrated qualities which are exceptional and single him out as attractive for employment, in his chosen field, at his previous level. The Defendant contends that, throughout his career, he has not stayed for lengthy periods of time in a single employment but has tended to get bored and move on. His talents and personal qualities are suited to him undertaking work as a contractor where he could earn well.
- The Defendant contends that it is common ground that, had the accident not occurred, he would, nonetheless, not have advanced to a very senior level because of his personal attributes and that it is highly likely he would, in due course, have become a contractor rather than scale the managerial heights in a company the size of HP.
- The Claimant invites me to accept the assessment made by Mr Burden of his likely level of earning, but for the accident, which, it is said, is appropriately structured, rigorous and realistic. The Claimant also invites me to accept Mr Burden's assessment of longevity of career through to 67 rather than 55.
- On residual earning capacity, the Claimant relies on the consensus that brain injury carries significant stigma in the field of IT enterprise architecture. He invites me to accept Mr Burden's oral evidence that recruitment consultants would have serious reservations about recommending him to a client even on a contracting basis and that his poor track record over the last 3-4 years has seriously damaged his prospects of returning to the sector.
- The Claimant also relies on Mr Burden's evidence that, as a contractor, there would be less scope for delegating work, a coping strategy which he used at T-Systems, and that the work as a contractor is harder because of pressure to deliver results.
- The Claimant invites me to conclude that, by reason of his cluster of symptoms, which need careful managing using the cognitive rehabilitation techniques that Ms Levett has taught him, he would not be able to cope in the world of IT. I am also invited to conclude that he has few transferable skills, save that he is a competent mechanic, and that I should accept that his likely future level of earnings now is going to be limited to the profits from the business, upon which he is embarking, of refurbishing motorcycles, having failed to obtain employment as a mechanic.
- I accept as realistic and properly structured the conclusions of Mr Burden on the likely level of earnings the Claimant would have achieved had he not sustained the injuries in the accident. It is implicit in Mr Burden's calculations that he is not assuming that the Claimant would have had lifelong employment with HP. There is nothing in his previous employment records to suggest that he would have remained there for the rest of his career, but I do accept as realistic the suggestion that he would have continued to advance in his career until about the age of 50 and, thereafter, would have remained in employment, or earning equivalently as a consultant, until the age of 67. Mr Burden's assessment of the likely future prospects for employees/consultants of that age is a realistic one. The Claimant is a man who is driven by his need to work and provide for his family and so would, in my judgment, have wanted to work until the age of 67.
- I reject as unrealistic the Defendant's contention that his future employment prospects since the accident have been unaffected. It is clear from the evidence that the cluster of symptoms from which he now suffers, and did suffer, adversely affected his ability to perform at the level, and with the intensity and stamina, he had previously achieved at HP. The evidence of Mr Guile and Mr Ress, as well as the Claimant's evidence of his ability to mask his under performance from his managers at T-Systems, in my judgment, is sufficient for me to conclude that the cluster of symptoms has significantly inhibited his ability to earn, through employment or as a consultant/contractor at the pre accident level. His experience at HomeServe underlines that point.
- On the other hand, it is, in my judgment, unrealistic for the Claimant to contend that his future earning capacity is limited to the severe extent for which he contends. There is no dispute that the Claimant is a highly intelligent, driven and work-oriented person. Furthermore, he is capable of a level of clear communication in his area of expertise which impressed both Mr Evans and Mr Burden in their interviews with him. He is in receipt of excellent advice from Ms Levett on the strategies he might adopt to ameliorate the impact of the symptoms from which he suffers and it is clear that he has been, and would be, conscientious in carrying these management techniques into practice. Accordingly, in my judgment, there is no good reason why he should not be able, with some level of success, to apply his professional expertise in the role of a contractor/consultant in a manner and to an extent consistent with him managing his present and continuing disabilities. The evidence of his time with T-Systems is that he was able to perform at a high level, albeit, given his symptoms, it would not be realistic to assume that he would, on any long-term basis, be able to hold down full time employment at such a level.
- Doing the best I can, in the light of the limited assistance I have received from the parties and their witnesses on this issue, in my judgment the Claimant could reasonably be expected, if he chose to do so, to achieve some measure of success hiring out his services as a consultant/contactor over the long-term. However, the inhibitions upon him, as well as the difficulties in the marketplace for someone who is only able to offer himself on a part-time and/or short-term basis, are such that, in my judgment, he could only realistically be expected to earn at a level of, at most, one-third of that which he would but for the accident have earned as a full time employee or fulltime consultant. Accordingly, my calculation of this element of the award will be informed by that assessment.
x) Quantification of the award
- The Claimant contends for £75,000. I refer to the Judicial College guidelines, 12th edition, on moderate brain damage. In paragraph c (ii) the range of damages starts at £66,600 in cases in which there is a moderate to modest intellectual deficit, the ability to work is greatly reduced if not removed and there is some risk of epilepsy. The lower categorisation, c(iii) from £31,650 to £66,600, is said to be appropriate in "cases in which concentration and memory are affected, the ability to work is reduced, where there is a small risk of epilepsy and any dependence on other is very limited.
- In my judgment, the present case falls on the cusp of (ii) and (iii). In my judgment, the appropriate level of general damages is £65,000.
Past loss of earning capacity
- The Claimant claims £21,688 under this heading.
- In mid-April 2014 his employment with HomeServe was terminated. He was paid 6 months basic salary in lieu of notice but nothing in respect of loss of benefits. The notice period ran out on the 15th October 2014. The Claimant claims net loss of benefits for the 6 months between mid-April and mid-October 2014, which is calculated as £15,150, and loss of his remuneration package for the period between 15th October 2014 and 9th November 2014 which is net £6,537. Those two sums equal £21,688.
- The employment experts were agreed that his level of earnings at HomeServe represented the minimum he could have expected to have earned but for the accident during that period. Accordingly, I can see no good reason, nor has any been argued, why the Claimant should not be entitled to this sum under this particular head. I award £21,688 under this head
Past treatment costs and travel costs to treatment
- The Claimant claims £18,400 under this heading. It represents treatment with Ms Levett between March 2013 until 29th October 2014 at the rate of £200 per hour.
- An invoice has been produced setting out 58, 2-hourly, sessions between those dates at a total cost of £23,200. This is greater than the sum claimed which is based on 80 hours treatment, or thereabouts, plus £60 for each session in travel costs.
- The Defendant contends that treatment in London by Ms Levett was not necessary. Treatment in Birmingham would have been at the lower end of Ms Levett's rates, namely £150, and travel would have been avoided. It is suggested that a maximum of £7,500 should be allowed under this head.
- There was an initial period, between March and August 2013, when the treatment was undertaken, essentially to address the anxiety symptoms of PTSD and associated agoraphobia. The Claimant's evidence, and that of Ms Levett, was that he made good progress and resolved those outstanding problems within a few months. Thereafter, the focus of the treatment has been to inculcate coping strategies to enable the Claimant to manage the persistent and ongoing symptoms. Those sessions have become more frequent since he was placed on garden leave in January 2014 by HomeServe, running at the rate of 1 a week between 14th January and 9th April.
- In my judgment, a reasonable level of access to Ms Levett during the period leading up to this trial, and to a limited extent beyond, is reasonable for the purpose of embedding the management strategies to which I have referred. This will, amongst other things, assist the Claimant in addressing the problems of earning a living for himself and his family by managing himself in such a way that he can better perform work, whilst coping with his present deficits. In my judgment, however, the number of sessions undertaken to date is more than reasonably required. I do not discount the hourly rate of £200 per hour but, in my judgment, talented though Ms Levett is, the Claimant could reasonably have obtained access to similar professional services in Birmingham without the need to incur travel costs. Taking all these factors in the round, in my judgment, an appropriate award under this heading is £20,000.
- As for future treatment, a claim is made for £10,000 which equates to 50 hours at £200 per hour, 25 two-hour sessions. The Defendant contends that future treatment should be limited to 30 sessions, as recommended by Dr Connolly, which would be one hour long and which would give rise, at £150 per hour, to £4,500 without any provision for travelling expenses.
- The recommendation of Dr Connolly is for 30 further sessions. The sessions the claimant has, thus far, been having have been of two hours duration. At an hourly rate of £200, without any travelling expenses, the claim of £10,000 is consistent with 25 further such sessions. In my judgment, that is an appropriate number of further sessions. I award £10,000 under this heading.
Additional accommodation costs
- The Claimant claims £8,595 in respect of this head of loss. It is said to derive from the need to for his family to vacate their open plan flat and to rent a conventional 3 bedroom semi-detached house with garden to enable the Claimant to have seclusion where he could be separated from the family when suffering symptoms of irritability and ballistic outbursts of temper.
- It became clear in the evidence that the combined effects of renting out the flat, paying the mortgage and renting the new accommodation was approximately cost neutral, taking into account the retention of a capital asset. In any event, in my judgment, it would, in due course, have become necessary for them to have moved into more conventional family accommodation as their daughter got older. I therefore disallow this head of loss.
- £25,000 is claimed under this heading to reflect the Claimant's estimate of retraining and obtaining tools and equipment to set up his motorcycle repair business, as well as £5,000 for career counselling and financial investment advice.
- I have received virtually no direct evidence in respect of this head of claim. I have found that it is unrealistic to suggest that the Claimant would be able to earn a living as a full time employee working in IT at the level he was doing before the accident. I have concluded that his future could, realistically, lie in work as a part time consultant. It is, in my judgment, reasonable to expect the Claimant to have some significant expenditure in terms of set up costs and/or retraining in order to give him the best prospect of earning a living, albeit at a reduced level. In my judgment the claim for £25,000 is reasonable and should be allowed.
Future loss of earning capacity
- I have indicated above the approach I am taking to this head of damages.
- I see no reason to dissent from the calculation undertaken at paragraphs 51 to 52 of the final schedule of loss dated 9th November 2014 which reflects the Ogden tables to which I have been referred. This quantifies his future notional earning capacity, in the absence of the accident, as being £2,169,646.
- As I have indicated above, I do not accept the Claimant's contention that his post-accident ability to earn would be as limited as he argues for: limited to his anticipated remuneration running his own motorcycle refurbishment business, generating a gross income in the region of £20,000 per annum.
- In my judgment, the Claimant can reasonably be expected to earn at a level no greater than one-third of that which he would have earned but for the accident by exercising his talent working part-time as a consultant in the IT industry. Accordingly, in my judgment, the appropriate level of award under this heading is one of £1,446,431.
- The total of these sums, including £2,600 interest on general damages, and the sum I award is £1,590,719.