Peter Asher Siegel v Lester Pummell
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wilkie |
| Judgment Date | 18 December 2014 |
| Neutral Citation | [2014] EWHC 4309 (QB) |
| Docket Number | Case No: HQ12X04341 |
| Date | 18 December 2014 |
| Court | Queen's Bench Division |
[2014] EWHC 4309 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Wilkie
Case No: HQ12X04341
Marcus Grant (instructed by Dickinson Solicitors) for the Claimant
John Leighton-Williams QC (instructed by Plexus Law) for the Defendant
Hearing dates: 11 th November – 21 st November 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is an assessment of damages in a claim brought by the Claimant against the Defendant arising out of a road accident on 16 th November 2009; liability has been conceded.
The Defendant's car struck the Claimant's vehicle from behind when the Claimant was stationary at traffic lights in Norwich. The estimated speed of the Defendant's car at the point of the collision has been variously stated as between 20 and 35 miles per hour. Photographs show the damage to the rear of the Claimant's vehicle and to the front of the Defendant's. The damage to the Claimant's vehicle was such that it was written off for insurance purposes.
The parties are fundamentally at odds on the issue of quantum. The claim is put forward by the Claimant at £2,172,235; of that £75,000 is by way of general damages and £3000 by way of interest on general damages. The other claims are for past loss of earning capacity, past treatment costs and travel, future loss of earning capacity, which amount to just over £2 million, additional accommodation costs, retraining and set-up costs, and future treatment. The Defendant's counter-schedule denies that any damages arise in respect of any of the heads asserted in the Claimant's schedule, save in respect of general damages for which the Defendant says the Claimant stands to be compensated to the extent of £5000.
The Claimant's claims are said to arise from a cluster of cognitive, physical and behavioural deficits that he attributes to "severe, subtle, permanent closed brain injury secondary to diffuse axonal injury" ("DAI"). It is from those permanent deficits that he says the losses set out in his schedule arise and that they were caused by the collision between the Defendant and the Claimant's vehicles.
The Defendant's position is, first, that, assuming the Claimant's reported symptoms are genuine, the Defendant denies that the Claimant sustained any head injury or brain damage; at most he suffered a whiplash injury but not a significant one. The symptoms of which he complains are said to be psychologically based arising in two ways: first, his psychological condition has always been such that such symptoms were going to occur in any event as a consequence of upsets in his life, such as stress at work, his mother's death, followed by later deaths in the family, estrangement from his siblings following his mother's funeral, domestic problems, and the recurrence of long-established ill health. Second, it is said that the persistence of his symptoms, particularly from the middle of 2010 are "iatrogenic" in nature that is they arise from the claimant, unconsciously, reflecting the expectations of his medical and legal advisers who have informed him, erroneously, that he sustained a brain injury in the accident. The Defendant contends that the accident has not affected the Claimant's ability to obtain and retain employment at the level he previously held.
The evidence:
The Claimant's lay witnesses:
The Claimant
He has provided two witness statements dated 27 th June 2013 and 22 nd July 2014.
He was born in New York on 17 th August 1971, is a naturalised British citizen from November 2010, is married (his second marriage) to Amber Patterson, an Australian born, naturalised, British citizen. They have a daughter, Juniper, aged 8. He was divorced previously in 2003.
He is a high-achieving, driven person who operated at a high intellectual level throughout his working life and had good physical and mental stamina. He accepts he has a non-conformist streak and has had brief periods of psychological illness in the past, none of which interfered with his ability to operate at a high level.
He has been measured with an IQ of 136, which places him in the "very superior" category. He had an outstanding academic school record which was not reflected in his university record, after which he worked in the IT sector. At 23 he worked for ROI Computer Services, designing IT solutions. Between 26 and 28 he worked for Alliance Consulting Group, but was made redundant in June 2000. His marriage broke down in 2000. He was unemployed for 7 months before finding work in the UK as a project manager with Red Brigade in 2001. He was again made redundant after 8 months. He remarried in 2003.
In August 2002 he was employed by RAC Software Solutions as an IT architect where he remained for 3 years before moving to Computer Science Corporation, designing large corporate IT systems. He became bored after a year and took a voluntary redundancy package. He joined EDS in 2006 in a role requiring him to come up with "big ideas" to transform IT systems not performing as well as they should. He worked as Chief Technical Officer ("CTO") on a contract for Xerox until 2008, when EDS was taken over by Hewlett-Packard ("HP"), a competitor of Xerox. He was moved to a different role on a contract for the Foreign Office until a new project arose in September 2008 working for Aviva. He led a team of between 30 and 40 responsible for designing a new system for Aviva. This involved travelling and working in Norwich.
When he returned to work after the accident, in mid January 2010, he found that little progress had been made. He had become short-tempered and had lost the organisational skills and lateral thinking required to put the project back on track. Within a couple of weeks he was replaced as the CTO on that contract and placed on gardening leave. Between February 2010 and May 2011 he was, for about one-third of his time, on gardening leave, for one-third of his time he was off work through illness, and for one-third of his time he was working on small, ad hoc contracts. He felt he was being forced out of HP and eventually, in April 2011, he resigned and brought a legal action against HP in the USA for disability discrimination which, in due course, was settled.
He had been highly sought after and was contacted by many "headhunters". In the Spring of 2011 was offered a role as head of architecture and engineering by the UK arm of T-Systems where he started to work in May 2011. His team was based in Bristol but, towards the end of 2011, his role was diversified involving travel to Germany twice a month. He continued working until March 2013 when he took 3 months off to undergo neuro-rehabilitation and cognitive behaviour therapy for his ongoing symptoms. His period off work was extended to the end of August 2013 when T-Systems terminated it, giving rise to a claim by him in the Employment Tribunal which, in due course, he discontinued.
He remained in demand and secured 3 different written job offers within a short time. He accepted one working in an executive director role with HomeServe whose place of business was close to his home address. That, however, did not work out and he was removed after approximately 2 months, since when he has been unemployed.
Immediately after the accident, he had severe headache, problems with his vision, and cervical spine pain. He had a persistent headache the following day and his recollection of the period of some 2 weeks after the accident is patchy. He stayed in his hotel for 2 days, too unwell to drive or work, and his wife came to drive him home on the third day. He tried to drive but was unable to.
After his initial attempt to return to work the week after the accident, he still had a very bad headache, so he returned to A&E on the 26 th November 2009. He had headaches, tunnel vision, and tingling on his face as well as memory loss, he was admitted overnight and discharged the following morning with painkillers and advice to take time off work.
He was certified unfit for 2 months, during which time he became aware of a range of physical and cognitive problems involving his short-term memory, concentration, and difficulty with organising and planning. He lost his libido, became indecisive, lost the ability to multi-task, lacked social judgment, would suddenly blurt out inappropriate comments, and suffered pervasive mental fatigue. He lost his previous tolerance to alcohol and developed a very short fuse, becoming susceptible to uncontrollable outbursts of temper for practically no reason. He showed less empathy to others. Those symptoms have persisted, though he has learnt strategies from his psychologist to control some of the more damaging aspects of his behaviour as well as on how better to control his fatigue. The psychologist, Ms Levett, also treated him successfully for certain symptoms of mild post-traumatic stress disorder.
During his time at T-Systems, he spent much of his time working from home, which enabled him to work intensively in short bursts before becoming too tired to continue. By working from home, he developed strategies to cover his inability to work intensely for a sustained period. Whilst with T-Systems, he was able to organise and deliver a one week conference in 2012 in Slovakia with 275 delegates but, after making the key note speech each morning, he would disappear to his room to rest for the remainder of the day. Thus, he was capable of operating at a high executive level for short periods of time and sought to cover his...
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...that injuries of this nature merit awards of £41,000–£86,000 with the 10% uplift. 69 He drew my attention to Siegel v Plummell [2014] EWHC 4309 (QB) in which the equivalent of £88,215.73, with the 10% uplift, was awarded to a claimant who suffered from a cluster of cognitive, physical and ......
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...are determinative of the outcome in this case, but rather that they are informative. The most pertinent of these is the most recent: Siegel v Pummell [2014] EWHC 4309 (Wilkie J) which shares many parallels with this case, and as it so happens, the claimant and Mr. Siegel have been friends f......