Clarke v Maltby
| Jurisdiction | England & Wales |
| Judgment Date | 28 May 2010 |
| Neutral Citation | [2010] EWHC 1201 (QB) |
| Docket Number | Case No: HQ07X03110 |
| Court | Queen's Bench Division |
| Date | 28 May 2010 |
[2010] EWHC 1201 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: The Honourable Mr Justice Owen
Case No: HQ07X03110
William Norris QC and Marcus Grant (instructed by Dickinson Solicitors) for the Claimant
William Featherby QC (instructed by Greenwoods Solicitors) for the Defendant
Hearing dates: 16, 17, 18, 19, 22, 23, 24, 25 March 2010
Judgment Approved by the court for handing down
The Hon. Mr Justice Owen:
The Claimant, Estelle Maria Clarke, who was born on 30 October 1964 and is therefore now 45 years of age, sustained multiple and life threatening injuries in a road traffic accident on 25 September 2004 when she was travelling as a front seat passenger in a car driven by the defendant. Liability was admitted on 15 April 2005, and judgment for damages to be assessed was entered on 21 August 2008. In addition to her physical injuries the Claimant suffered an acute psychiatric reaction to the accident. It is also now accepted by the defendant that she suffered brain injury in the accident; but the nature of the brain injury and its effect upon her cognitive functioning is disputed. The claimant is a solicitor in private practice, and the central issue before me was the degree to which the brain injury has affected her capacity to function as a solicitor specialising in banking related transactions. In consequence both general damages and the claim to loss of earnings, past and future, are in issue. The remaining heads of damage have been resolved by agreement.
The Accident
The accident happened at about 8.40 pm on 25 September 2004. The defendant, with whom the claimant was then in a relationship, was driving along Cupernham Lane near Romsey, Hampshire, when he executed a dangerous overtaking manoeuvre. Having completed the manoeuvre he drove at speed over the give way lines between Cupernham Lane and Sandy Lane and into a head on collision with a car being driven by a Miss Hobbs. The collision impact speed of the two cars was estimated to be in the region of 80–110 miles per hour. Miss Hobbs was killed. The defendant was subsequently convicted of driving without due care and attention at the Newforest Magistrates' Court on 16 December 2006.
The claimant's last memory before the collision was of the defendant overtaking a people carrier in a manner that she recalls making her feel anxious, and that he then continued to accelerate. She remembers being aware of a junction ahead, and thinks that she shouted “stop” or something similar. Her next memory is of what she describes as a ‘yellow bang’. She believes, and it is now accepted, that she was rendered unconscious by the impact. Her next memory is of fumbling for the catch to her seat belt, the car by then being stationary. In her first witness statement dated 6 May 2009 she gave the following account of what then happened.
“38. From that point on my memories are patchy and difficult to sort into any chronological order. I remember being pleased I could open the passenger door and I have a memory of putting my right foot on the ground and nothing happened. I subsequently discovered that my right ankle and foot were badly damaged and would not support me. I then have a memory of lying in the recovery position on the verge beside the road. I was aware that I had glass in my mouth which I was unable to spit out and remember taking a decision to scrunch is up and swallow it. I also have a memory of not being able to breathe well whilst lying on the ground and I thought that I was dying. I remember being very frightened and very lonely. My memories remain very patchy from that point.
39. I don't remember the paramedic arriving…I have some vague memories of other people arriving including the ambulance and the Fire Brigade. I recall being checked by a doctor who then left to go and look at the driver of the other car. I remember the chest drain being inserted into the left side of my chest below my armpit. I remember being put onto a flat board. I don't remember being put into the ambulance. I do, however, have a vague memory of a policeman trying to question me in the ambulance before he was removed by the medical attendants.”
The ambulance that took the claimant to Southampton General Hospital left the scene approximately 40 minutes after the accident. She was admitted to the Intensive Care Unit where she was found to have sustained multiple injuries including:
i) Undisplaced fracture of the C2 vertebra (known as a ‘hangman's fracture’).
ii) Undisplaced fracture of the C3 vertebra.
iii) Displaced fracture of the right malleolus.
iv) Capitate fracture of the left wrist.
v) Fracture of the left clavicle.
vi) Fracture of the left first rib and pneumothorax of the left lung.
vii) Fracture of two right lower ribs.
viii) Lacerations to the right chin.
ix) Seatbelt compression injury to the lower abdomen leaving scarring above the bikini line.
x) Facial bruising.
The claimant was treated as an inpatient for 12 days, initially in the Intensive Care Unit for 3 days followed by a period in a High Dependency Unit. She suffered very high levels of pain in the early stages of recovery, partially controlled with morphine. Whilst in hospital she was in a state of intense anxiety, constantly reliving those parts of the accident that she could remember, and fearful that she could be rendered paraplegic at any time by virtue of the injuries to her cervical spine. She was also very distressed at separation from her four young children. In due course she was mobilised, initially in a wheel chair, then with a zimmer frame before progressing to crutches. But when discharged from hospital she could only walk short distances with crutches, needed help to get in or out of bed, and needed assistance in virtually every activity. She continued to be intensely fearful that if she slipped or moved her head in the wrong way, her spinal cord would be damaged, and she would be rendered paralysed.
Happily the claimant has made a good, if not complete, recovery from her physical injuries, and was finally discharged from outpatient care by her treating orthopaedic surgeon in April 2005. When seen by Mr Peter H. Worlock, a consultant trauma and orthopaedic surgeon, in December 2007 she was continuing to suffer some residual discomfort in the neck, left wrist and right ankle, but they do not give rise to a significant continuing disability.
The issues
Assessment of the claim to past and future loss of earnings and for general damages will depend upon resolution of the following issues:
a) what symptoms (apart from those attributable to the physical injuries identified above) has the claimant suffered and/or continues to suffer?
b) are such symptoms attributable to the accident?
c) what is the cause of the symptoms attributable to the accident? Are they attributable to the psychological reaction to it, or to the injury to the brain?
d) what is the prognosis for such symptoms?
e) what is the effect of such symptoms upon the claimant's capacity to function as a solicitor in private practice?
In summary it is the claimant's case that as she made her substantial recovery from her physical injuries, she became increasingly aware of a range of problems including mental fatigue, cognitive dysfunction, disinhibition, temper, impaired memory and concentration and processing, and compromised and inappropriate speech and word finding. It is submitted that such symptoms are attributable to injury to the brain, and that given the period that has elapsed since the accident, no further significant improvement can be expected. She also suffered from a chronic/severe post traumatic stress disorder and a chronic/severe major depressive disorder, some of the symptoms of which can replicate those caused by an organic brain injury. But she has now made a recovery from those psychiatric conditions such that any persisting psycho-pathology is now only at a sub-clinical level. Accordingly it is submitted that the continuing symptoms must be attributed to the brain injury.
As to the effect of her continuing symptoms, it is submitted on her behalf that it is now clear that she will be unable to pursue a career as a solicitor in private practice, and has a markedly reduced earning capacity.
It is now the defendant's case that the claimant sustained a head injury with sequellae which, at present, have the effect of:
a) inducing more fatigue than would normally be the case;
b) causing some –
i) weakness in specific word retrieval when naming objects to confrontation;
ii) weak performance on some tests of memory;
iii) weaknesses of executive functioning;
It is also accepted that the claimant suffers from residual, sub-clinical symptoms of PTSD, but is asserted that whilst there remains a risk of temporary relapses, her remaining symptoms of PTSD should abate.
The defendant submits that the claimant is capable of working full-time in private practice as a fixed-share equity partner of a regional firm of solicitors doing transactional work with an earning capacity of about £120,000 to £130,000 gross (salary and bonus) a year. But it is further submitted that in view of her continuing symptoms, the claimant would be acting reasonably if she were to decide to withdraw from private practice and take up less onerous employment as an employee of a business or organisation in the private or public sectors.
Resolution of such issues, in particular the effect of such symptoms as she continues to suffer upon her capacity to function as a solicitor in private practice, necessarily involves consideration of her career to date.
The claimant read English at the University of Wales, graduating in 1986 with a 2.1 degree in Linguistics and English Literature. On leaving...
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