Claimant successfully argues that she suffered brain damage following minor collision; Court rejects Defendant's neurological evidence.

The claim arose out of an RTA on 2 July 2002. The Claimant stopped at a zebra crossing. A van driven by the Defendant failed to stop in time and ran into her rear. The Claimant alleged that, despite the comparatively minor nature of the collision, she suffered continuing, intrusive and disabling symptoms which have meant that she has not been able to return to her pre-accident employment as a nursing sister in an IC Unit. In particular she claimed to have suffered from an injury to her brain which has left her with impaired cognitive function. The defence case was that the Claimant was deliberately exaggerating her symptoms or alternatively had come to believe her own exaggerated account. Whilst there was a difference in evidence as to accident circumstances, the liability experts were agreed that the key issue was the acceleration applied to the Claimant which would be determined by the speed change at impact. A number of lay witnesses gave evidence of the change in the Claimant's personality since the accident.

Held

The speed change was in the region on 9-10 miles per hour. Having considered all the evidence, the Claimant was in essence a truthful witness and discrepancies in her evidence were attributable to her difficult pre-accident personality. Her presentation in Court was consistent with the history of symptoms she had given. The collision which had occurred was capable of causing a diffuse axonal brain injury in the absence of head trauma. This was supported by post traumatic amnesia of several days duration and by the results of psychometric testing. The Claimant is now unable to work. Damages of £511,903 were awarded.

Comment 

Defendants and insurers should remain objective in the face of apparently disproportionate symptoms arising from relatively minor accidents, particularly in brain injury cases where diagnosis can be controversial. There are many genuine explanations for such claims and the burden of proving malingering is a high one and will require reliable evidence from medical experts and other sources.

In this case damage was done to the Defendant's case by difficulties relating to the evidence of his neurological expert, Dr Gross. In addition, the Defendant's attempts to obtain surveillance evidence to damage the Claimant's case were unsuccessful and even partly supported the claim. Positive surveillance evidence is often one of the most effective tools a Defendant can have in challenging claims of this nature.