Palmer v Mantas & Anor

Background

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The Claimant was driving on the M25 motorway in a 50 mile per hour speed restricted section of the motorway and was passing roadworks. The car in front of her came to an abrupt stop and she braked and stopped behind it. The car travelling behind her was speeding and crashed into her car shunting it forward into the car in front.

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As a result of the accident the Claimant

suffered from various cognitive problems

including severe and debilitating migraine

headaches, mental fatigue, impaired memory

and concentration, word retrieval difficulties,

impaired hearing, impaired balance, impaired

ability to make decisions, reduced tolerance of

alcohol, heightened anger and irritation,

impulsive spending and obsessive behaviour.

She also suffered physical injuries and an expert

in pain management opined that she had

Somatic System Disorder with predominant pain.

The Claimant had to resign from her marketing

position at the Hippodrome nightclub in London

and she became heavily dependent upon her family to provide her with care and assistance.

The Claimant was originally represented by a firm of solicitors appointed by her own car insurance company and she never met with the solicitor as is often the case in such circumstances; that solicitor, did not take a detailed statement from her and ultimately failed to identify the head injury. The Claimant instructed Garden House Solicitors nearly three years after the accident on the recommendation of Dr Simon Lloyd of Hertford Chiropractic Treatment Centre. Garden House Solicitors instructed a number of experts to examine the Claimant and prepare reports and the mild traumatic head injury was identified. Liverpool Victoria was put on notice of that.

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The Trial

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There was a voluminous amount of evidence prepared before the trial. The Claimant attended at 22 medico-legal examinations during the five-year period after the accident. She was examined by her own core experts on two occasions and the Defendant’s experts each examined her once. The lead experts were within the field of neuropsychiatry, neurology, pain and neuropsychology. In addition, there were orthopaedic surgeons and vestibular physicians.

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Liverpool Victoria conducted surveillance on the Claimant over a 17 day period and also instructed an investigator to review her social media accounts. Garden House Solicitors had to make an application to the Court for disclosure of that evidence and the Court ordered Liverpool Victoria to provide it. 700 social media posts were disclosed. The Claimant was accused of fundamental dishonesty on the basis that she had not mentioned to experts instructed by Liverpool Victoria a number of holidays she had been on and activities she had participated in which she had posted about on her social medial account. The Judge rejected that argument and said that the Claimant had not been asked questions about her social media posts and the fact that she did not volunteer information that was not asked of her did not amount to dishonesty. The Judge said that in determining how much reliance to place on social media posts it was necessary to express a level of caution and he agreed with Counsel for Liverpool Victoria who commented that “social media tends to paint a glossy picture of the poster’s life”

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                                                                                                    During the trial live evidence was given by a                                                                                                                number of lay witnesses including former                                                                                                                      colleagues of the Claimant, one of whom travelled                                                                                                      from Switzerland to give his evidence. The                                                                                                                    Claimant’s partner and her father were called to                                                                                                          give evidence about her participation in a 10k                                                                                                              Bear Grylls event and they stated that she did not                                                                                                      complete the full event despite posting about iton                                                                                                     social media, she did what she could over several                                                                                                       hours with rest stops. Being fit and athletic before                                                                                                       the accident the Claimant wanted to challenge                                                                                                           herself by participating in that event.

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                                                                                                   During the trial the Judge was critical of two of Liverpool Victoria’s medical experts, he observed that their neuropsychological expert's first report was 'littered with judgmental and rather scathing comments and that her language went beyond that which was appropriate for an expert to employ' and he suggested a level of unconscious bias.

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The Judge also criticised Liverpool Victoria’s pain management consultant, Dr Mark Miller, who admitted at trial that he did not believe the Claimant from the outset and that view was fortified when he subsequently considered the social media evidence. He accepted he was “over-zealous in his use of language from the outset … and said that when he re-read his reports in preparation for the trial he winced and thought he could have been a little bit more reflective and kinder and provided a little bit more range of opinion”. He agreed that he had been “probably slightly unfair” to describe the Claimant in a report commenting on surveillance evidence as being “more or less housebound”. The Claimant had never asserted that she was housebound and that was not part of the defence in any event. In cross-examination, Dr Mark Miller sought to amend his assertion to “She was more housebound than most people of [her] age”, which conveys a completely different meaning.

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Dr Mark Miller also apologised to the Court for criticising the evidence of Dr Allder, the neurologist instructed by Garden House Solicitors, he said that “What I said about Dr Allder’s report and how I reviewed it was simply not good enough”.

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Dr Mark Miller also admitted that he made an error in the joint pain statement with Dr Munglani who was instructed by Garden House Solicitors, where he erroneously stated that “Dr Munglani appears to have predicated his opinion and prognosis around the severe traumatic diffuse axonal injury and the brain injury opinion of Dr Allder” whereas in fact Dr Munglani had advanced that opinion and prognosis with three alternatives which the brain injury was only one. He agreed in evidence that Dr Munglani’s opinion “Was more complex”. As Dr Mark Miller did not believe the Claimant from the outset, he did not consider the alternative case in respect of pain management and it was only in oral evidence that he agreed with Dr Munglani’s diagnosis that the Claimant had Somatic System Disorder with predominant pain.

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The Judge was troubled by Dr Mark Miller’s departure from his CPR Part 35 duty to the Court, he considered that his evidence lacked the appropriate necessary balance and he said that on matters of variance where Dr Mark Miller’s opinion departed from Dr Munglani’s opinon, he preferred the latter expert’s evidence.

In his closing speech Counsel for Liverpool Victoria accepted that he could put no reliance on Dr Mark Miller’s evidence and he accepted that the Claimant’s expert, Dr Munglani, was a more impressive expert.

In considering the Claimant’s injuries and the impact on her life the Judge awarded the Claimant compensation in the sum of £1,679,406.

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The Claimant was represented by Garden House Solicitors and Marcus Grant of Temple Garden Chambers. Marcus also represented the Claimants in Stansfield v. BBC and Long v. Elegant Resorts. Theses cases also involved claimants recovering substantial damages for the consequences of mild traumatic brain injuries in the face of disbelieving defendants, two of whom mounted unsuccessful fundamental dishonesty defences in the defence of the claims.

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If you have been injured in an accident and are concerned that you may have suffered a subtle head injury or if an insurer has accused you of fundamental dishonesty and you need advice, please contact Garden House Solicitors on 01992 422128, we represent injured people all over the UK and will be happy to discuss your case with you