Siegel v Pummell

In assessing damages for a road accident, a diffuse axonal injury may be established on the balance of probabilities even where CT and MRI scans show no lesion, loss of consciousness is absent or brief, and the Glasgow Coma Scale is normal. The court must assess the mechanism of injury, the immediate clinical evidence, the duration of post-traumatic amnesia, and the continuing symptom cluster as a whole. Psychological vulnerability and an iatrogenic explanation may be relevant alternatives, but they do not exclude organic injury where the overall evidence favours it. Loss of earning capacity must reflect both the claimant’s likely uninjured career and the realistic residual earning capacity permitted by the continuing disabilities.

The claimant sought damages arising from a rear-end collision for which liability had been conceded. He alleged a permanent closed brain injury involving diffuse axonal injury, causing enduring physical, cognitive and behavioural symptoms and substantial loss of earning capacity. The defendant accepted only a minor whiplash injury and contended that the symptoms were psychologically based, including through pre-existing vulnerability and the effect of being told that a brain injury had occurred.

The central issues were causation, the reliability and weight of the lay and expert evidence, and the claimant’s past and future earning capacity.

1. Causation. The claimant proved on the balance of probabilities that the continuing cluster of symptoms was caused by diffuse axonal injury sustained in the accident. The absence of visible lesions on CT or MRI, a normal Glasgow Coma Scale, and no or brief loss of consciousness did not conclusively exclude such injury.
2. The relevant evidence had to be assessed cumulatively. Material factors were the significant rear-end collision and acceleration/deceleration mechanism; contemporaneous evidence of headache, visual disturbance, confusion and memory loss; the hospital record of loss of consciousness and post-traumatic amnesia; an assessment of post-traumatic amnesia exceeding 24 hours; and the consistent evidence of enduring cognitive, physical and behavioural changes.
3. The claimant’s past susceptibility to anxiety and depression, and the possibility of an iatrogenic psychological explanation, were genuine alternative explanations. They were insufficient on the evidence. The psychological symptoms had responded to treatment, while the cognitive and behavioural symptoms persisted. The formulation advanced by Professor Morris was preferred to the contrary opinions.
4. The continuing injury substantially reduced the claimant’s ability to sustain full-time senior employment. He retained valuable expertise and communication skills and could reasonably earn as a part-time IT consultant or contractor. His realistic residual earning capacity was assessed at no more than one-third of his uninjured earning capacity.
5. Damages were awarded in the total sum of £1,590,719, including £65,000 general damages, £21,688 past loss of earning capacity, £20,000 past treatment costs, £10,000 future treatment, £25,000 retraining and set-up costs, and £1,446,431 future loss of earning capacity. The accommodation claim was disallowed.