Before His Honour Judge Hellman | Thomas Moore Building, Royal Courts of Justice, Strand, London – 03/05/2019
Plexus Law represented UKI Insurance Limited in connection with a claim arising out of a road traffic accident that occurred on 18/10/2012 when the Claimant, then aged 17, riding his motorcycle in Kent, was hit by the First Defendant’s motor vehicle. The claim against Insurers was brought by the Claimant under Regulation 3 of the European Community Rights Against Insurer Regulations 2002.
Liability was admitted in full, with damages to be paid by the Second Defendant.
The matter came to Trial before His Honour Judge Hellman who gave findings in relation to:
- The injuries suffered by the Claimant
- How they affected him, and
- What financial and non-financial loss had been caused to the Claimant.
Written and oral evidence was heard from the Claimant and three members of his immediate family.
Expert written reports of Mr J O’Dowd, Consultant Orthopaedic Surgeon and Mr Dinshaw-Master, Consultant Psychiatrist, were considered on behalf of the Claimant.
Oral expert evidence was heard from Mr Colin Natali (Spinal Consultant) and Dr Stuart Turner (Consultant Psychiatrist), on behalf of the Second Defendants.
The Claimant had served Witness Summonses 5 days before Trial on his own experts, as he was representing himself in person. The Claimant had from 2012 to 2018 been represented by New Law Solicitors in Cardiff.
The experts made oral application to the Judge at commencement of the Trial that they were unable to offer the Court up to date evidence about his medical condition, as they had not seen Mr Bellett for several years and satisfactory arrangements were not in place to pay their fees.
The Claimant’s Pain Management Consultant, Dr C Jenner, made a written Application to the Court following service of the Witness Summons, that he did not intend to appear, that he did not take instructions from Litigants in Person, no arrangements had been made for payment of his fees, and he had not received up to date instructions in order to comply with Case Management Directions and had not completed Joint Statements nor watched any surveillance evidence.
In a ruling on day 2, the Judge allowed the reports of the experts, Mr O’Dowd and Mr Dinshaw-Master, to be accepted as written evidence into the case, together with their previous Joint Statements. He ruled that in deciding what weight to give to those opinions, he would remain mindful that the Second Defendants had not been afforded the opportunity to cross-examine their unagreed opinions and that Dr Dinshaw-Master had not seen nor commented on the 2017/18 surveillance evidence.
In relation to the Claimant’s evidence from Dr Chris Jenner, Pain Management Consultant, the Judge dismissed his evidence from the case as a result of his application. As a result, the Defendant did not call their own Pain Management Consultant, Dr Peter Evans to give evidence.
The case was pursued aggressively by the Claimant and his former solicitors and following the change in the discount rate in March 2017, had been pleaded in excess of £3,350,000.00 on the premise he was permanently unfit to ever return to any employment and required background care for life.
The Claimant sustained the following injuries:
- Fracture to the thoracic spine, requiring open reduction and internal fixation
- Fractures to the chest wall
- Fractures of the ribs
- Soft tissue injuries to the neck, shoulders, low back and hips with radiation into his left leg
The Claimant had no pre-accident symptoms of neck, thoracic or back pain.
The Spinal Consultants, in their Joint Statement, having reviewed medical records, which clearly documented Mr Bellett reporting a good recovery with regard to his symptoms and return to normal activities being attempted at around 6 months, had agreed that would be an appropriate period of pain and disability in relation to the spinal injury sustained.
The Claimant attempted to return to work as an Apprentice Motor Mechanic in April 2013, but reported deterioration by August 2013 and ceased all further employment.
By September 2013 some increased lower thoracic back pain and muscle stiffness, worse in the morning, and although x-rays showed satisfactory placement of the metal screws and rods supporting the spine with no post-operative changes to the x-rays, the Claimant underwent further surgery to remove the metal supports on 07/01/14. Medical records showed that by March 2014, the Claimant had tolerated surgery well.
The Claimant was involved in a subsequent road traffic accident on 03/12/14, represented by Carpenters Solicitors that he had failed to disclose to medical experts in subsequent examinations. The Claimant had attended for a medical examination in relation to the later accident and a medical report for a claim under the MOJ Portal had been obtained.
The Claimant attended the examination in respect of the second accident on 26/01/15 where he reported suffering from neck pain, stiffness and stiffness in the thoracic lumbar spine and psychological symptoms from the second accident, as well as contusion to the rib cage.
Dr Saeed, The GP expert, gave an opinion that the Claimant should recover within 9 months from the soft tissue injuries and 4 months from the psychiatric symptoms.
The Claimant had reported to Dr Saeed in January 2015 that he had been involved in an RTA two years previously, (the index accident) as a result of which, he had sustained injuries to his lower back and that he continued to suffer from episodes of pain in his back and rib cage, but denied having any previous significant related symptoms.
The Claimant maintained his case that the deterioration that took place from August 2013 continuing to date, was all directly related to the index accident and that he had gone on to develop a chronic pain syndrome and significant psychiatric sequela with widespread paravertebral thoracic pain and worsening of the left leg weakness, significantly reduced mobility and breathing difficulties together with pain from walking in his hips and lower back, shooting pains into his feet and heels with loss of sensation, erectile dysfunction, limited shoulder movements, memory loss and alleged head/brain injury symptoms.
The Orthopaedic experts agreed that any increase in symptoms after the 6 month period initial recovery could not be due to physical injuries but were due to the development of either a form of chronic pain syndrome or deliberate misrepresentation.
Mr O’Dowd believed there was evidence of a significant head injury, but the Second Defendant had successfully resisted two previous Applications from the then represented Claimant to call neurological evidence due to lack of objective evidence of any head injury.
The Orthopaedic experts had deferred to experts in pain and or psychiatry as to the interplay of any alleged chronic pain and the accident.
The Judge found that significant elements of area of injury complained of by the Claimant, were not supported by any medical evidence as having been caused by the index accident, such as the erectile dysfunction and alleged brain injury.
Psychiatric experts had prepared a previous Joint Statement in which they agreed the index accident had caused the Claimant to develop PTSD and depression and they agreed that there was no previous history of psychiatric injury or vulnerability prior to the accident. It was the Claimant’s case that significant psychiatric symptoms continued.
The Claimant described frequent nightmares of the incident/flashbacks and anxiety when travelling in a car, anger against the driver of the car and feeling very low. He felt his symptoms had deteriorated and his family supported his evidence on that point.
He had received treatment from a Clinical Psychologist from February to September 2013, but had failed to attend numerous sessions due to several other demands on his time.
By April 2013, clinical records showed that the Claimant was not suffering nightmares, was sleeping 8 hours a night and was not experiencing anger or irritability and was not experiencing a heightened threat response. The Claimant, in addition, passed his motor vehicle driving test in May 2013.
The Judge accepted Dr Turner’s evidence, that he could not opine whether the pain was causing Mr Bellett to experience emotional problems or that emotional problems were causing Mr Bellett to experience pain, but in his opinion the Claimant had not suffered any lasting emotional damage.
Dr Turner gave evidence that it was possible that the Claimant had become obsessed with this claim, rather than suffering from any ongoing psychiatric condition. Based on the reports of the medical experts, the independent report of Dr Saeed, clinical comments in medical records that documented objective recovery and the force of Dr Turners evidence. The Judge concluded that the Claimant was likely to have recovered from any PTSD by 6 months post accident and that once remitted PTSD would not return but the Claimant would have been more susceptible to subsequent PTSD from another event.
The Second Defendants relied on various periods of both static and mobile surveillance evidence from 2015 to 2018, all of which, in summary, showed an unemployed gentleman appearing to go about his general business, going for frequent drives in his car, turning his head without restriction to the left and right, walking with a normal gait, visiting shops and garages and for a period of 18 days of static camera surveillance, having not been seen entering or leaving his home address. The Judge held that it was likely, despite the Claimant’s protestations, that he had used an interim payment made on 03/05/18 to travel on holiday rather than for pain management treatment, which he had so desperately sought in 2018. The video surveillance was held to show the Claimant often returning to his home address in the small hours of the morning.
He had obstructed appointments with the Defendant’s Care and Pain Management experts after receipt of a £40,000 interim payment granted in May 2018 on his Application to fund urgently needed pain management treatment recommended by his Pain expert, Dr Jenner in December 2017. The Claimant did not seek the pain management treatment for which he had received an interim payment in 2018.
In addition, the Claimant alleged that he sustained repeated dislocations of his left hip and that he has undergone a stroke in the material accident. He had for 2 years during the litigation failed to register with any GP or sought any medication or treatment on the NHS, despite his alleged level of disability.
The Judge accepted that the Claimant’s pain and disability might be caused by a chronic pain syndrome, but as he had heard no expert evidence on pain management, he could only deal with pain as a subjective experience and that any evidence from pain management opinions would have been heavily dependent on the Claimant’s reporting of his pain and what those doctors had made of his complaints.
Credibility was attacked in relation to:
- Surveillance evidence, suggestive of higher levels of mobility;
- Failure to use interim payment to pay for pain management treatment;
- Obstruction of appointments and declining domiciliary visits by the Defendant’s Care and Pain Management experts;
- The reasonable inference that the Claimant was most probably on holiday for 16 days between 24th May and 8th June 2018 and
- His medical condition recorded by Dr Saeed in January 2015, which was not consistent with the evidence of his medical condition at that time, being given to experts in the material case.
The Court found that the Claimant did not have a convincing explanation for the discrepancy, having initially denied being examined by Dr Saeed for the purposes of a second claim at all.
The Judge found that he was not satisfied that the Claimant had experienced all of the symptoms, which he claimed and in his Judgment, reiterated that it is for the Claimant to prove the injury and loss which he has suffered. He did not accept the Claimant’s evidence on injury and loss where it had not been agreed or it was not supported by independent witness evidence or documentation.
The Claimant was awarded General Damages, including the 10% uplift, which the Court of Appeal directed in the Simmons v Castle 2013 1 WLR1239, on the basis that his symptoms had largely resolved by April 2013 and almost entirely resolved by January 2015. The Judge did not find the Claimant continued to experience significant accident related symptoms.
He considered whether the Claimant suffered from pain, but at a lower level than that which he claimed, but found that this was not the case put forward by the Claimant and was not a possibility which he was satisfied was established on the balance of probabilities by the evidence he had heard.
General Damages were awarded for the most significant spinal injury and PTSD of: £35,000.
Damages for financial loss were restricted to Loss of Earnings from 19/10/12 until 08/04/13 of: £3,675.
Gratuitous Care to 04/04/13:£2,838.
Miscellaneous expenses, damaged motorcycle and travel: £1,697.
Total Special Damages: £8,210
The Claimant was not entitled to damages for Future Loss. The Defendant will pursue a significant costs liability from the Claimant resulting from offers having been made in 2014 which the Claimant failed to beat.
If you would like to know more about this matter, please speak to your contact at Plexus:
Jo Pizzala, Partner
T: 0207 618 0780 | M: 07957 726 576 | E: email@example.com