Defeating subtle brain injury claims through a meticulous approach expert to medical evidence | Joseph v The Commissioner of Police of the Metropolis

Subtle traumatic brain injury claims are a thorn in the side of defendant insurers as they rely heavily on a subjective account of the alleged…

Executive summary

Subtle traumatic brain injury claims are a thorn in the side of defendant insurers as they rely heavily on a subjective account of the alleged symptoms. However, a series of recent decisions has improved the outlook in such claims, with particular focus on the medical evidence.

In detail

These include Pinkus v Direct Line in which fundamental dishonesty was established against the claimant and where the claimant’s medical evidence came in for criticism for straying outside of the relevant area of expertise, lacking objectivity and failing to acknowledge inconsistencies in the claimant’s account.      

Further, in Hibberd-Little v Carlton, the defendant’s medical evidence was preferred, mainly because it was firmly supported by published medical literature. In this case, over £4.4 million was claimed and just £41,000 was awarded.

Also, the recent decision in Joseph v The Commissioner of Police of the Metropolis includes further judicial criticism of the claimant’s medical evidence where the claimant sought to establish causation of a mild traumatic brain injury, vestibular concussion, visual vertigo and postural orthostatic tachycardia syndrome, as the result of a rear end shunt.

HHJ Baucher ignored elements of the claimant’s medical evidence as they were not substantiated by academic papers. A significant issue in this case was the duration of the alleged post traumatic amnesia and the defendant’s evidence was preferred in this regard.

Conclusion

These judgments are extremely welcome and demonstrate that a forensic approach to these claims is essential, particularly in respect of the neurological expert evidence. Getting the correct legal and medical team at the outset and preserving documentary evidence are key to defeating these potentially expensive claims.

Can we help?

We will be hosting a special Motor forum in our London office, on 5 September 2018, to consider the industry’s approach to these claims. For more information on our Motor forum and how to secure your place please email stacey.damigos@weightmans.com.

In the meantime, should you wish to discuss this in more detail, or would like assistance with any other matter, please do not hesitate to get in touch with:

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