Long v Elegant Resorts Ltd

In a personal injury claim involving alleged mild traumatic brain injury, the court must assess the whole evidential picture. Genuine post-traumatic amnesia may exist without obvious confusion, and momentary genuine post-traumatic amnesia is sufficient under the Mayo classification for mild traumatic brain injury. Normal neuro-imaging does not exclude mild traumatic brain injury.

Fundamental dishonesty requires dishonesty which substantially affects the presentation of the claim in a significant way. Momentary inadvertence by an employee who is attempting to assist a colleague will not ordinarily amount to contributory negligence. Damages may be discounted to reflect a pre-existing vulnerability, but the discount must reflect the evidenced risk rather than an assumption that relapse was more likely than not.

The claimant, an IT employee, struck his head on a low cellar doorway while assisting a colleague at work. The defendant admitted liability for injuries caused by the accident but disputed the existence and consequences of any traumatic brain injury. It alleged that the claimant’s symptoms arose from pre-existing fibromyalgia or somatic symptom disorder, that he had exaggerated or dishonestly presented his symptoms, and that his redundancy was the true cause of his deterioration.

The court determined the claimant’s pre-accident condition, the nature and consequences of the accident, causation, alleged exaggeration and fundamental dishonesty, contributory negligence, and damages.

1. Injury and causation. The claimant was walking quickly, rather than running, when he struck the doorway while assisting a colleague. He did not lose consciousness, but the consistent early medical accounts and his repeated recollection of sitting upstairs established a short period of post-traumatic amnesia. Post-traumatic amnesia may occur without obvious confusion, and genuine amnesia of short duration is sufficient under the Mayo classification for mild traumatic brain injury. Normal CT and MRI scans did not exclude that diagnosis. The claimant suffered mild traumatic brain injury, with early vomiting and visual disturbance, followed by symptoms substantially caused by the accident and subsequent migrainous headaches.
2. The claimant had a history of fibromyalgia and somatic symptoms, but the evidence did not establish pre-accident somatic symptom disorder. His continuing symptoms were best explained by functional neurological symptom disorder and somatic symptom disorder arising after the accident, together with depressive disorder and pre-existing vulnerability.
3. Dishonesty. Applying Ivey v Genting [2016] UKSC 67, the court assessed the claimant’s actual knowledge and belief before applying the standards of ordinary decent people. The defendant had not proved deliberate exaggeration or dishonesty. Applying London Organising Committee of the Olympic and Paralympic Games v Sinfield [2018] EWHC 51, no fundamental dishonesty was established under section 57 of the Criminal Justice and Courts Act 2015.
4. Contributory negligence. The claimant’s conduct was, at most, momentary inadvertence while attempting to prevent injury to a colleague. It did not amount to the fault required under section 1(1) of the Law Reform (Contributory Negligence) Act 1945.
5. Damages. The claim succeeded. Damages were discounted to reflect the evidenced risk of relapse from the pre-existing condition. The total award was £509,957, plus agreed interest of £9,803 and an additional £50,497 under CPR 36.17(4)(d).