Hibberd-Little v Carlton, Court of Appeal - Queen's Bench Division, July 06, 2018, [2018] EWHC 1787 (QB)

Resolution Date:July 06, 2018
Issuing Organization:Queen's Bench Division
Actores:Hibberd-Little v Carlton

Case No: HQ16P01064

Neutral Citation Number: [2018] EWHC 1787 (QB)



Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Friday, 6th July 2018

Before :


(Sitting as a Judge of the High Court)

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Between :

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Mr Marcus Grant (instructed by Dickinson Solicitors) for the Claimant

Mr Jonathan Watt-Pringle (instructed by Clyde & Co Claims LLP) for the Defendant

Hearing dates: 14, 15, 16, 17, 18, 21, 22, 23, 24 and 29 May 2018

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JudgmentHis Honour Judge Saggerson


1 This is a claim for personal injury damages arising out of a road traffic accident. Liability is not in dispute, negligence having been admitted by the defendant at an early stage of the proceedings. The claim arises out of a rear-end collision on 29th March 2013 (Good Friday). The claimant (born on 16 April 1983, then aged 29) was driving a new Ford Focus. Her husband was the front seat passenger. She was caught in stop-start traffic queueing on a slip road leaving the M25 near Cobham in Surrey. The claimant and her husband (``Trevor'') were on their way to a water park near Guildford where they intended to meet up with her sister and her family. At about 3pm her car was struck in the rear by another Ford Focus driven by the defendant. The airbag was not activated. The claimant was wearing a safety belt and did not strike her head as a result of the impact. There is no estimate of the impact speed from any lay or expert witness. The only recorded estimate of speed is in the A&E notes: ``?30 mph''. I infer from the traffic conditions on the M25 as well as on the slip road that this is a reference to an impression of the speed of the defendant's car when the claimant first saw it approaching in her rear-view mirror. The resulting estimate must originally have come from the claimant as nobody else (such as Trevor) was aware of the defendant's approaching car. I conclude that the defendant braked on the approach to the collision; which is verified albeit in the most general terms, by the defendant's own accident report form. There is no other evidence to help with this aspect of the case and I conclude from the nature of the vehicle damage, such engineering evidence as there is, and the inherent likelihood that the defendant would have been braking heavily as she says she was before the impact that the speed on impact would have been appreciably less than 30mph. There are photographs of the damaged vehicles (some of which I conclude must have been taken by the claimant herself on her smart `phone in the immediate aftermath of the collision). Because of its age and low value, the defendant's car was written off; but the claimant was able to drive her car home. The engineer's report describes the impact as ``light'' and the repair costs were modest.

2 The trial occupied 9 days of evidence and a day for submissions. I was assisted by comprehensive written opening and closing submissions by Counsel: Mr. Watt-Pringle QC for the defendant and Mr. Grant for the claimant. There were 14 trial bundles comprising in excess of 4,500 pages including reports from 11 expert witnesses, 10 of them medical experts; 9 of whom gave oral evidence. There were 13 factual witnesses The claimant; her husband; her mother (Susan Hibberd - 3 statements)) and father (Graham Hibberd - 2 statements); Louise Fisher, Jason Griffiths, Emma Espin, Ann Perseh, Amy Arnold, Denise Birkett, Keith Miller - all of which date from mid-2016 onwards. Hayes & Glenn, the surveillance operatives were taken as read. whose evidence was either called or, in a minority of instances, read. Not much was agreed. It is not possible to refer to every different strand of the evidence from every witness in this judgment but all the material has been taken into account.

Summary of the Parties' Positions

3 The Claimant claims she suffered a cluster of cognitive, behavioural and physical problems due to the accident in that she sustained a head injury; a diffuse axonal injury [``DAI''] together with post-traumatic stress disorder [``PTSD''] and associated agoraphobic consequences with panic attacks and obsessive-compulsive disorder type symptoms [``OCD''], all as a result of the collision. DAI relates to the shearing of the axons of the white matter of the brain at a microscopic level and is damage that is not always capable of detection on MRI or CT imaging. The claimant's case is that it can be caused by an acceleration-deceleration trauma not involving any impact to the head, and that that is likely to have occurred in this accident. The claimant also claims she has concussion of the auditory and vestibular systems resulting in vestibular migraine, hyperacusis and consequential deconditioning resulting from compromise to the neural pathways caused by a DAI. She also suffered a soft tissue injury to her neck and upper thoracic spine and some sort of injury to her left wrist and hand which it is claimed have left her with moderately intrusive intermittent symptoms of neck and upper back pain and tenderness and a reduction of power in the left thumb (``the orthopaedic injuries''). The claim is for £4.4 million.

4 The Claimant was a teacher. She returned to work less than a month after the accident (after the Easter holiday) but ultimately left the profession in July 2014 (resigning in May 2014) because she says she was unable to cope due the effects of her brain injury. Her PTSD and OCD were treated successfully but her cognitive, behavioural and some physical symptoms, such as disinhibited temper, fatigue, loss of organisational skills, loss of concentration, alcohol intolerance and headaches (``a dull background headache ... present all the time''), amongst other things, persist. Her case is that:

``after the accident everything changed. I always seemed to be tired and my brain just didn't seem to function in the way it had before ... I no longer seemed to be able to handle the pressure of the (teaching) job and I started to find it stressful, believing that it was only a matter of time before I was found out and sacked.''

5 Whilst accepting that the orthopaedic injuries were (at least to a significant extent) caused by the accident, the defendant denies that the accident caused or materially contributed to any of the other consequences alleged by the claimant. Although the defendant does not accuse the claimant of being dishonest or of fabricating her symptoms, or consciously exaggerating them, she is put to proof that her subjective complaints are attributable to a DAI and an associated vestibular injury caused in the accident. The defendant maintains that the claimant is not suffering from a DAI or damage to the vestibular or auditory systems. The defendant's Counter-Schedule dated 26.01.18 puts it in this way:

5.1 It is denied that the Claimant sustained a "very severe" diffuse axonal injury ("DAI") or any other brain or neurological injury in the accident, and [denied] that she has been left with "subtle and pervasive" cognitive and behavioural deficits''.

5.2 The defendant also accepts that there are no enduring psychological consequences and does not put forward a psychological or psychiatric explanation for the Claimant's reported enduring symptoms: ``It is denied that the Claimant developed PTSD with associated agoraphobia and panic attacks and Obsessive-Compulsive Disorder as a result of the accident. She has no current neuropsychological or psychological disorders as a result of the accident, which will impact upon her future functioning, and there is no risk of deterioration as a result of the accident. Nor does she require any treatment.''

5.3 The defendant relies on the apparent absence of contemporaneous or near contemporaneous records in treating doctors' and other records of symptoms commonly associated with brain injury. The defendant submits that it is for the claimant to prove that the accident caused the orthopaedic and organic brain injuries about which she now complains and that such injuries have caused the losses particularised in her most recent Schedule. It is not necessary for the defendant, so it is submitted, to put forward a positive case on causation or to put forward an alternative diagnosis of such enduring problems as the claimant has. On the defendant's approach the action has a value of only a fraction of what is claimed. The medical and causation issues are foreshadowed in more detail in the defendant's Schedule of Medical Issues.

The Issues

6 The following issues arise:

6.1 What injuries did the claimant suffer as a result of the collision? Did she suffer a Diffuse Axonal Injury with associated vestibular compromise and the Post Traumatic Stress Disorder, Obsessive Compulsive Disorder and orthopaedic injuries alleged?

6.2 If she suffered organic brain and vestibular injuries, did they cause her to give up her career as a teacher?

6.3 What loss has the claimant suffered as a result of the accident?

6.4 Is the claimant a reliable and accurate historian such that a temporal link can be established on the factual evidence between the accident and such enduring symptoms as she continues to experience?

7 It is submitted that the claimant is honest and reliable. If her evidence and that of her witnesses is accepted, the diagnosis of DAI made by experts called on her behalf is more probable than not. There is no other alternative organic diagnosis and no psychological pathology. Therefore, because the defendant does not allege fraud the case turns substantially on a diagnosis made in the context of and on the strength of truthful and reliable evidence.

8 The defendant submits otherwise and relies on the decision of the House of Lords in Pickford v Imperial Chemical Industries [1998] 1 WLR 1189. In that case a full-time...

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