Mild Traumatic Brain Injury (mTBI) Litigation

MILD TRAUMATIC BRAIN INJURY (MTBI) LITIGATION following Long, Stansfield, and Palmer

In May 2021, the High Court handed down the decision of His Honour Judge Pearce in the case of Long v. Elegant Resorts [1], in what was to be an extremely important 12 months in the niche area of mild traumatic brain injury litigation.

In this case, the 47-year-old Claimant, Mr. Long, represented by Colin Cook at Hatch Brenner, sustained what the Defendant employer, a travel agency firm based in Chester, described as a “mild bump on the head of a kind that people suffer regularly and which has led to no long-term consequences at all”. The injury occurred as Mr. Long rushed from one room in the premises of his work to another, through a darkened room, in an attempt to assist a colleague who he thought was at risk of injury.

The court conducted a forensic analysis of the immediate aftermath of the accident, which included to a large extent the 24 hours following the accident and the attendance at the hospital on the day following the accident. Those records contributed to the Judge’s findings that the Claimant sustained a mTBI by reference to the Mayo classification. A crucial part of that classification system is the presence of post-traumatic amnesia (“PTA”). This is very often a contentious area of the factual evidence in mTBI cases, often due to the fact that medical records so often don’t include a full record of PTA, and taking a history of PTA quite sometime after the initial events, when lawyers and medical experts become involved in a case, is frequently argued to be unreliable.

The court held that a state of PTA can exist without there being any obvious signs of confusion. In addition, the Defendant-instructed neurologist, Dr. Heaney, conceded in cross-examination that he had experience with people with “pretty innocuous head injuries… sustained in sport, who have had enduring symptoms for many years”.

HHJ Pearce could not find any distinction between a head injury sustained in the sporting arena and those sustained in other circumstances. He went on to say that the severity of impact is a relatively poor indicator of the likelihood of a person suffering mTBI. The judge accepted the Claimant’s interpretation of the Mayo classification: momentary PTA is a sufficient symptom to justify a diagnosis of mTBI. In this case, the Claimant sustained a mTBI, which became the gateway to the condition that followed, namely a Functional Neurological Somatic Disorder (FNSD) coupled with Somatic Symptom Disorder (SSD), the latter being a condition that the Claimant suffered from pre-accident.

Court Ruling

Mr. Long went on to defeat allegations that the presentation of his claim was dishonest. This arose in relation to Mr. Long’s redundancy, which was coupled with his failure to pass embedded validity tests during neuropsychological testing. The latter point required very careful analysis of the type of tests that were delivered and how they might be impacted by the type of symptoms that were complained of. An understanding of the practical nature of those tests was crucial to seeing past the oversimplified approach of making an assumption of dishonesty based upon the test results alone.

The Claimant recovered damages exceeding £500,000. The Defendant sought to appeal the findings of the judge at first instance. Permission to proceed with the appeal was refused by both the trial judge and the Court of Appeal.

BBC Stansfield v. BBC [2]

In October 2021, the High Court handed down its decision in the case of Stansfield v. British Broadcasting Corporation. In this case, the claimant, Mr. Stansfield, was acting as a human crash test dummy for a recording of the popular TV programme, Bang Goes the Theory. Repeated simulated crashes took place at speeds between 8 and 11 mph. It was the Claimant’s case that, as a consequence of this activity, he sustained a mTBI coupled with a subtle audio-vestibular disorder and went on to develop psychological symptoms that had a long-term impact on his career prospects.

The Defendant denied the presence of any mTBI but instead contended that the Claimant had suffered from a moderate whiplash injury with depressive symptoms. The defence was run on the basis that the Claimant was required to prove the medicine underpinning his case.

As with the Long case, the Court analysed the 24-hour period immediately following the accident. Rather unusually for cases of this nature, the accident and immediate aftermath were captured on film as part of the process of the television show (although there were gaps between filming). The Claimant was able to continue to perform for the camera immediately after the accident, showing no obvious signs of confusion (a similar finding to that in the Long case). There were short-lived symptoms of anosmia, and the Claimant went on to show signs of agitation and uncharacteristic behaviour some 6 hours later.

It was common ground between the parties that there is a small cohort of patients who sustain mTBI who continue to suffer ongoing symptoms despite the diagnosis of brain injury falling at the mild end of the scale.

The Court found that Mr. Stansfield sustained subtle damage to the left side of his inner ear. This explained his early complaints of dizziness, balance problems, and migraines. Mr. Stansfield underwent a meticulous and reliable neurotological assessment. The tinnitus that presented several weeks after the crash tests was attributable to them. However, the modest audio-vestibular damage could not explain the ongoing significant impairment on its own but was one component of Mr. Stansfield’s complex presentation.

The Court found that Mr. Stansfield developed a significant psychological reaction that was superimposed on his organic injuries and included a major depressive episode and post-traumatic symptoms. Over time, his presentation satisfied a dual diagnosis of Somatic Symptom Disorder lying alongside the enduring whiplash, mTBI, and audio-vestibular injuries.

Palmer v. Mantas & LV Insurance [3]

The third important ruling of our trio came in January 2022. The Claimant was 26 years old at the time of the accident that gave rise to her claim. That accident was a road traffic accident in which the Claimant experienced a high-energy rear-end shunt.

This case once again involved an unsuccessful attempt by the Defendant insurers to deploy an allegation of fundamental dishonesty (essentially fraud).

Ms. Palmer was a fit and active young woman, and while she maintained a reasonably high level of physical fitness following the accident, she was unable to perform at the levels she enjoyed before the accident. She was subjected to covert surveillance and social media surveillance. The Defendant conceded during trial that the video surveillance was neutral at best, and the judge made the observation that social media posts tend to paint a glossy picture of the poster’s life and are not always a true reflection of reality.

Most experts were commended by the trial judge for the assistance they provided in helping understand the complex interplay between the physical, neurological, and psychological consequences of the accident. The evidence was described as sophisticated and cutting-edge.

The judge directed some criticism at the Defendant’s experts, Dr. Torrens (a neuropsychologist), whose first report was described as being “littered with judgmental and rather scathing comments”, and Dr. Miller (pain management), whose evidence the Defendant placed no reliance upon in closing arguments. The judge provided a reminder that the duty of medico-legal experts under CPR 35 and the relevant practise direction cannot be overemphasised, and it is essential that experts understand that their duty is to assist the Court by providing their objective, unbiased opinion upon consideration of the material facts.

It was held that the Claimant sustained a mild to moderate traumatic brain injury. Dr. Allder advanced the theory of neurometabolic cascade, which was accepted by the court, and takes the theoretical medicine in a medico-legal context further, which is arguably one of the most important points to take away from the Palmer case in terms of a broader application of principles. Dr. Allder’s evidence also referenced the “cone of vulnerability,”  which the judge found helpful. The judge accepted that Ms. Palmer’s delayed presentation could be explained by the neurometabolic cascade. It is worth noting that the Defendant did not advance an alternative theory, choosing instead to rely solely upon arguments of dishonesty.

Both the Long and Stansfield cases were referenced in the lengthy judgement, and HHJ Pierce was quoted from the Long case in establishing that so long as post-traumatic amnesia is found, however brief, and even in the absence of other symptoms, a finding can be made of mTBI in accordance with the MAYO classification system.

The Claimant established that she sustained a traumatic brain injury, developed PTSD (which reoccurred), and went on to develop a somatic symptom disorder.

Ms. Palmer recovered the usual heads of claim, including pain, suffering, loss of amenity, lost earnings, and care and assistance. The judge considered that in terms of future lost earnings, a multiplier or multiplicand approach was more appropriate (the Defendant arguing the contrary), recognising the flexibility in the approach adapted in the earlier case of Conner v. Bradman [4].

So what can we take away from this trio of important decisions?

The importance of the 24-hour period following a mild traumatic brain injury

All three cases illustrate the complexity of the medical presentation in mTBI cases and the need to undertake a multi-disciplinary approach to the medical expert evidence. They show how the Courts are taking an increasing interest in the initial 24-hour period following the injury and the need for legal teams to take care in collating the evidence to undertake a comprehensive analysis of the events during this period as soon as possible. Waiting times for expert appointments can be lengthy, so legal advisors must be skilled and experienced in taking a thorough post-traumatic amnesia history to overcome arguments involving memory attrition over the passage of time.

From a practical perspective, the information exchange during initial meetings with new clients can sometimes be overwhelming, particularly for clients experiencing memory, concentration, and fatigue issues. A number of initial meetings may very well be necessary, one of which should concentrate on that early statement and obtaining a clear PTA history. This could prove invaluable as cases coming to trial years after an accident will look carefully at the documents created close to the accident date, including early statements, accident reports, and medical records.

Changing the perspective on brain injury

All three cases have reset the landscape when it comes to litigation in mTBI personal injury cases. They illustrate how mTBI need not be a stand-alone condition to recover damages but instead can be one component of a broader constellation of symptoms, even if those symptoms are subtle. Furthermore, mTBI is recognised in these two important judgements as a gateway to other disorders that may develop, which may or may not have an overall somatic flavour. Functional Neurological Disorder (FND) is becoming more commonplace both in the medical-legal and clinical settings, and whereas once perceptions towards FND may have been negative, the tide is most definitely turning.

Fundamental Dishonesty

The unseen nature of mTBI will often give rise to allegations of fundamental dishonesty. Defence teams will look for inconsistencies in the evidence in an effort to defeat claims on grounds of fundamental dishonesty. Allegations of dishonesty can come very late in the life of a legal claim once all evidence has been exchanged, which will require a considerable amount of additional work to address the factual matters relied upon by the defendant in support of such allegations. This work is often unbudgeted and will require amendments to budgets to ensure that the costs arising from the additional work are covered.

Allegations of dishonesty will often be accompanied by surveillance evidence. In the context of mTBI, surveillance will be deployed to observe a claimant’s energy levels and activity to ensure they are consistent with the evidence provided to the medicolegal team and experts. It can also be used to evaluate vestibular conditions.

Deploying surveillance evidence and allegations of dishonesty will no doubt raise the temperature in a case. As can be seen from the Palmer case, defence teams still undertake and deploy surveillance footage when it is “at best neutral”. MTBI cases often involve psychological symptoms. Having represented many claimants who have been subjected to surveillance, there is no doubt that it raises anxiety and provokes feelings of privacy invasion. In some cases, this can add to the complexity and uncertainty surrounding the medical presentation, which in turn assists defendant-instructed experts in their arguments that the litigation is a contributing factor to the claimant’s condition and that once concluded, the condition will improve.

Even though the Long and Palmer judgements provide an analysis of the fundamental dishonesty arguments, they do not fully reflect the practical impact these allegations have upon claimants and their teams. It is a tactic designed to raise the stakes significantly in circumstances that, arguably, Section 57 of the Criminal Justice and Courts Act never intended. All three of the cases involved in this analysis will have involved evidence running to thousands of pages. Defendant teams will look for inconsistencies in that evidence, however small. In the Palmer cases, the judge commented that it would be perhaps more unusual and suspicious if there were no inconsistencies in the evidence at all.

Direction of travel

Perhaps the main point of interest in these cases is the direction of travel by the courts in following the emerging or cutting-edge understanding of mTBI. As a litigator involved in this field, it is my observation that the approach being taken by the courts is more consistent with the day-to-day experiences of service users of organisations such as Headway. These cases led by Long provide a clear pathway for claimants to establish mTBI by reference to the MAYO criteria, which have been accepted as capable of being the presence of PTA over a very short period of time with no other obvious initial symptoms or symptoms that can arise over time due to the neurometabolic cascade.

Interestingly, in the Long case, the defendant legal team repeated the reference to a mild bump to the head; however, under cross examination, the defendant’s instructed neurologist, Dr. Heaney, conceded that he had encountered patients from the sporting arena who had experienced enduring symptoms as a result of an innocuous bump to the head, no doubt a reflection of the reality of clinical practise versus the vacuum providing medico-legal opinion. The court found there were no grounds to distinguish the injuries sustained by Mr. Long from those types of sporting injuries.

Leaders in evolving the mTBI legal landscape

Marcus Grant was instructed as counsel in both the Long, Stansfield, and Palmer cases. Mr. Long was represented by Colin Cook of Hatch Brenner LLP. Mr. Stansfield was represented by Antony Gold LLP, and Ms. Palmer was represented by Garden House Solicitors.

[1] [2021] 2021 EWHC 1330

[2] [2021] EWHC 2638

[3] [2022] EWHC 90

[4] [2007] EWHC 2789

These recent cases highlight how crucial it is for claimants to work with personal injury claims solicitors who understand the complexity and nuance of mTBI litigation. From establishing a brief episode of post-traumatic amnesia to challenging allegations of dishonesty and interpreting emerging neurological theories, an experienced legal team can make all the difference in successfully navigating the legal and medical challenges associated with these cases.