Ali v Caton & Anor

In assessing damages for severe traumatic brain injury, the court must evaluate the whole evidential picture. Repeatedly unreliable symptom-validity testing may make quantitative test results unsafe, but it does not remove the need to assess clinical observations, functional evidence and rehabilitation records. A claimant may have genuine, lasting cognitive impairment while also deliberately underperforming in medico-legal examinations or adopting an illness role. Functional ability may vary with structure, motivation, fatigue, pain and environment.

Loss of earnings should ordinarily be assessed by a multiplier-and-multiplicand approach unless the evidence makes that inappropriate. Under the Mental Capacity Act 2005, capacity is decision-specific and requires consideration of whether the person can understand, retain, use or weigh relevant information, or communicate the decision.

The claimant suffered very severe brain and orthopaedic injuries when struck by a car. Liability had been compromised at 80 per cent against the first defendant. The trial concerned quantum, including the lasting effects of the injuries, cognitive functioning, malingering, employment prospects, care needs, capacity to manage property and affairs, life expectancy and the appropriate assessment of financial losses.

The defendants argued that the claimant had consistently exaggerated his disabilities. They relied on poor symptom-validity-test performance, his educational achievements and his passing the UK Citizenship Test. The claimant relied on extensive treatment, rehabilitation and day-to-day evidence. The central issues were the claimant’s genuine functional disabilities and the appropriate basis for calculating compensation.

1. Assessment of the evidence. The claim was not essentially fraudulent. The claimant had sometimes knowingly underperformed in medico-legal examinations and had adopted an illness role, but that did not establish that his overall presentation was contrived. The court accepted that he had significant lasting cognitive impairment, although it was less severe than some formal test results suggested. His functional ability depended on multiple factors, including memory, attention, executive functioning, fatigue, pain, mood, motivation, environment and rehabilitation.
2. Symptom-validity testing. The repeated failures of symptom-validity tests meant that quantitative neuropsychological results were unsafe to rely on in isolation. They did not justify disregarding clinical observations or the evidence of professionals who had observed the claimant over extended periods. The Banstead rehabilitation records and Support Needs Guide were the best evidence of his genuine day-to-day functioning.
3. Mobility, employment and care. The claimant could undertake some short and familiar journeys with strategies, but remained unreliable and vulnerable in unfamiliar or complex environments. It was exceptionally unlikely that he would obtain or sustain remunerative employment. After transition, flexible support of about 10 hours per week was required, together with case management and family care.
4. Capacity. Applying sections 1 to 3 of the Mental Capacity Act 2005, the claimant lacked capacity to manage his property and affairs after receiving a substantial award. His impulsivity, suggestibility, poor judgment, memory difficulties and inability reliably to use or weigh information supported that conclusion.
5. Financial assessment. The court rejected a broad-brush approach to past and future earnings and adopted a multiplier-and-multiplicand assessment. On life expectancy, Table 1 of the Ogden Tables was appropriate because the medical evidence established a reduction from statistical life expectancy rather than a defined term certain.
6. Outcome. The claimant recovered damages assessed at £1,708,627 against the first defendant and £1,708,296 against the second defendant before the 20 per cent liability deduction and other deductions. The resulting awards were £989,167 and £988,902 respectively, with future care and case management to be dealt with by periodic payments.

First-instance quantum judgment following an earlier compromise of liability at 80 per cent against the first defendant. No appellate history was stated.