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

Judgment was handed down on Friday in the long running matter of Stansfield v BBC. The former BBC TV presenter was awarded £2.42 million (reduced by 33% to £1.6 million for contributory negligence) in respect of his mild traumatic brain injury (mTBI) workplace injury claim.

Owing to the causation issues in play and the judicial interpretation of the expert evidence, the decision will be of interest to those with a particular focus on mTBI cases.

Background

The claimant was injured whilst acting as a ‘crash test dummy’ during a science programme for the BBC. He partook in two forward-facing and two rearward-facing simulated crashes into a metal post at impact speeds of between 8 and 11mph. The experts agreed that the force of the impact in these ‘barrier collisions’ was equivalent to a vehicle-to-vehicle collision at up to twice the speed.

It was the claimant’s case that the force of the impact led to a mTBI with particular audio vestibular and psychological symptoms. This subsequently derailed his television career with future earnings representing a high percentage of the pleaded claim. The BBC denied that the claimant had sustained any brain or audio vestibular injuries, instead insisting that the claimant prove his claim, and in doing so, citing the dicta in Pickford v ICI [1998].

Despite a total of six MRI brain scans revealing no abnormality, no clear evidence of post-traumatic amnesia, loss of consciousness or an impaired Glasgow Coma Scale score, the court found that the claimant had indeed sustained an mTBI. The claimant was deemed to be one of the “unfortunate minority of people to suffer disproportionately severe symptoms following relatively minor injury”.

The court also accepted that the claimant had developed a significant psychological reaction. This in turn satisfied a dual diagnosis of somatic symptom disorder lying alongside the mTBI and vestibular injuries.

Regardless of the attributed symptoms, the court was of the clear view that the care evidence relied on by the claimant was not required. The claimant was deemed to “not require anything like nursing care”. Consequently, the claimant was awarded £15,000 to cover all lifetime future care and service requirements.

Comment

Much like in the case of Hibberd-Little v Carlton [2018], the defence team did not put forward an alternative explanation for the claimant’s symptoms. Rather, their case was that the burden to prove a positive case fell on the claimant, and there was insufficient evidence for him to prove mTBI on the ‘balance of probabilities’. Whilst this approach was successful in Hibberd-Little v Carlton, there is inevitably a risk that a judge will interpret the specific facts of the case to find that causation is proven, as happened here.

Implications for the market

Litigation risks relating to mTBI have always been there and every case will turn on its facts. This case does not, in our view, alter the landscape for defendants in mTBI claims because:

• This was “a highly unusual mechanism of injury” with the force of the impact in these ‘barrier collisions’ being equivalent to a vehicle-to-vehicle collision at up to twice the speed and repeated four times in relatively quick succession. These are very different circumstances compared to a low speed road traffic accident.
• The court had the advantage of actually seeing the claimant displaying signs of neurological impairment very shortly after the insult, by way of the post-collision filming where the claimant was struggling to remember his lines and looked visibly and progressively unwell. That largely negated the need to establish post-traumatic amnesia to underpin the mTBI diagnosis.
• There was no deep analysis of the diffuse axonal injury causation arguments we have seen in other cases, and therefore no determination on that issue. The experts accepted there was no identifiable damage on the MRI scans however, the more sensitive scanning procedure could not be undertaken on this particular claimant.
• The defence team chose not to call two of their experts (their neuropsychologist and psychiatrist), which we assume was for some specific tactical reason however, this is not common practice.

Finally, the judge’s comments on the claimant’s care expert present welcome opportunities from the defendant perspective. The judge questioned whether expert care evidence was even required but having been asked to consider the evidence Mrs Justice Yip, concluded that the claimant’s expert had “over-inflated the claim” and called into question the impartiality of the expert. These criticisms could have broader application when looking at the general approach to assessments by claimant care experts.