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The Shifting Landscape of Mild Traumatic Brain Injury (mTBI) Litigation In 2021 from Norwich Solicitors

13/01/2022

Author: Colin Cook

Accidents and Injuries, Brain Injury

A review of the landmark Mild Traumatic Brain Injury cases of the past 12 months

In May 2021, the High Court handed down the decision of His Honour Judge Pearce in the case of Long v Elegant Resorts.

In this case, the Claimant, Mr Long, sustained what the Defendant employer, a travel agency firm based in Chester, described as a "mild bump on the head of a kind which 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.

Court Analysis

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, which included the attendance at 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 of 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 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 which followed, namely a Functional Neurological Somatic Disorder coupled with Somatic Symptom Disorder, the latter being a condition which the Claimant suffered from pre-accident.

Personal injury ruling

The Claimant went on to defeat allegations that the presentation of his claim was dishonest and 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.


mTBI personal injury in the workplace - BBC

In October 2021, the High Court handed down the 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 program, Bang Goes the Theory. Repeated simulated crashes took place at speeds between 8 – 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 which had a long-term impact upon 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 hours 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 to 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 that continue to suffer ongoing symptoms despite the diagnosis of brain injury falling at the mild end of the scale.

Court ruling

The Court found that the Claimant sustained subtle damage to the left of his inner ear. This explained his early complaints of dizziness, balance problems and migraine. The Claimant 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 to the Claimant’s complex presentation.

The Court found that the Claimant developed a significant psychological reaction that was superimposed on his organic injuries that 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.

Importance of the 24-hours following a mild traumatic brain injury

Both 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.

Changing the perspective towards brain injury

Finally, both the Long and Stansfield cases have reset the landscape when it comes to litigation 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 judgments as a gateway to other disorders that may develop, which may or may not have an overall somatic flavour.

Leaders in evolving the mTBI legal landscape

Marcus Grant was instructed counsel in both the Long and Stansfield cases. Mr Long was represented by Colin Cook of Hatch Brenner LLP. Mr Stansfield was represented by David Marshall of Antony Gold LLP.

Colin Cook, Partner and Personal Injury specialist at Hatch Brenner Solicitors

Colin Cook, Hatch Brenner Solicitors Partner, Head of Litigation and Brain Injury Specialist

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