Palmer v Mantas & Anor - the challenges of the mTBI defence

Hot on the heels of the judgment in the case of Stansfield v BBC [2021], the High Court has handed down judgment in Palmer v Mantas & Anor [20.01.22]. The claimant received an award for damages in excess of £1.6 million for her minor traumatic brain injury (mTBI) in the face of allegations in regard to fundamental dishonesty.

Background

The claimant’s case was that she had suffered a minor traumatic brain injury (mTBI) combined with a somatic symptom disorder as a result of a road traffic accident. This led to long-term intrusive symptoms, which significantly impacted on her ability to work and also gave rise to a heavy dependence upon her family for care and assistance.

Although the accident was a high-speed rear end shunt, there does not appear to have been any immediate concern about the claimant having suffered a significant head injury. Whilst the claimant did apparently go on to develop some concerning symptoms, and seek medical treatment, she nevertheless returned to work within a relatively short period of time and continued to work full-time for several months before then departing to spend several weeks in India four months post-accident, where again she was working.

It was not until 2017, almost three years post-accident, that the claimant stopped working and appeared to become far more dependent on others. Throughout that period of time, the claimant had been regularly posting photographs and comments on social media evidencing a variety of holidays and other activities. As such, the defendant produced a bundle totalling 700 pages in relation to social media posts.

The defendant’s case was largely founded on an assertion that the claimant had not been entirely honest with the numerous experts she had seen in relation to the full extent of her activities and holidays. However, the difficulty for the defendant was that the claimant had, at least according to the judge, provided a largely consistent and honest description of her ongoing difficulties. He found that she had answered the specific questions that had been put to her by experts, and often answered them in the “present tense”.  He did not find the omission of further information that was not brought out by direct questioning to be significant.

The judge specifically noted that the defendant had not produced any authorities to support the contention that the claimant’s failure to volunteer information could amount to fundamental dishonesty, as opposed to making positive assertions that were found to be untrue. It probably did not assist the defendant in their allegations of fundamental dishonesty that the surveillance they obtained (which totalled 17 days) was only served following a specific request from the claimant for full disclosure.

Comment

However, at the root of this decision, and the previous decisions in favour of the various claimants, was the determination by the judge that the claimant was basically honest and doing their best, despite some inconsistencies. Once that seed has been sown, it is not terribly hard for a judge to interpret any apparent discrepancies or inconsistencies in a way that does not significantly undermine the claim as presented.

Implications for the market

• Whilst there have been a number of successes for defendants in relation to allegations of fundamental dishonesty, it is nevertheless still a high hurdle to overcome. The allegation obviously stands or falls upon the judge’s assessment of the claimant as an individual and that is often very much an unknown quantity for the defendant.
• Defendant litigators have, quite rightly, been critical of experts instructed on behalf of the claimant, who accept everything they are told at face value, apply no critical analysis of inconsistent evidence and take a dogmatic approach to their conclusions, with no regard to the possibility of a ‘range’ of opinion. However, it is of course the case that experts instructed on behalf of defendants could, potentially, be guilty of the same approach, and it is important that a careful eye is cast over even the most supportive of expert evidence.
• In terms of the mTBI diagnosis, there was an acceptance by the judge in this case, as there was by HHJ Pierce QC in Long v Elegant Resorts [2021], that in specific cases even a momentary post-traumatic amnesia is enough to lead to the conclusion there was mTBI. Insurers and experts alike will have to take note of this in their future case preparation.
• In terms of the assessment of damages, the judge found that a multiplier/multiplicand calculation was the correct formula for the earnings claim. However, he departed from the guidance in Ogden 8 and applied an adjustment to the discount factor. In previous articles we suggested this would remain the case, despite the forceful explanatory notes accompanying the publication of the Ogden 8 tables.

Related item: Stansfield v BBC – A crash test but not a car crash for defendants