Stephen Long v Elegant Resorts Ltd
| Jurisdiction | England & Wales |
| Judge | Pearce |
| Judgment Date | 18 May 2021 |
| Neutral Citation | [2021] EWHC 1330 (QB) |
| Date | 18 May 2021 |
| Docket Number | Case No: QB-2018-005711 |
| Court | Queen's Bench Division |
[2021] EWHC 1330 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE Pearce SITTING AS A JUDGE OF THE HIGH COURT
Case No: QB-2018-005711
Marcus Grant (instructed by Hatch Brenner LLP) for the Claimant
Marcus Dignum QC (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing dates: 22 – 26 February 2021, 1 – 2 March 2021
This judgment was handed down in private at 10am on 18 May 2021. I direct that 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 Background | 2 |
| The Trial | 3 |
| The Claimant's Case in Summary | 5 |
| The Defendant's Case in Summary | 9 |
| The Issues in the Case | 9 |
| THE EVIDENCE Approach to the Lay Witness Evidence | 11 |
| The Lay Witnesses | 14 |
| The Expert Witnesses | 20 |
| THE LAW Fundamental Dishonesty | 21 |
| THE ISSUES 1 — Relevant pre-accident symptoms and diagnosis/diagnoses | 25 |
| 2 — Circumstances of the accident and its immediate aftermath | 42 |
| 3 — Symptoms and diagnosis/diagnoses immediately after accident | 51 |
| 4 — Symptoms and diagnosis/diagnoses from May 2015 | 75 |
| 5 – Allegations of exaggeration | 95 |
| 6 – Allegations of dishonesty | 98 |
| 7 — Fundamental Dishonesty | 100 |
| 8 — Contributory negligence | 100 |
| 9 — Quantum | 101 |
| CONCLUSION Conclusion | 107 |
INTRODUCTION
Background
The Claimant, who was born on 24 May 1973 and is therefore now 47 years old, was injured in an accident at work on 22 March 2015. At that time, he was employed by the Defendant, a company based in Chester, as their Head of IT. On the day of the accident he and another employee of the Defendant, Mr Craig Jones (who was employed at the time as a Facilities Assistant, but now is the Defendant's Facilities Manager), were involved in removing items from the cellar of premises known as the Old Palace in Chester. These premises had been occupied by the Defendant as offices, but which were to be handed back to the landlord. It is common ground that, during the course of this work, the Claimant went to assist Mr Jones and, in so doing, struck his head on a low part of the ceiling of the cellar.
The Claimant contends that the accident caused a Traumatic Brian Injury (“TBI”) and that its aftermath has had a serious effect upon his life. He brings this claim against the Defendant for damages for personal injuries and consequential losses allegedly sustained as a result of the accident.
The Defendant admits its liability for injuries caused by the accident but says that this was no more than a bump to the head of a kind which people suffer regularly and which has led to no long-term consequences at all. In addition, the Defendant contends that damages should be reduced by reason of the Claimant's alleged contributory negligence in respect of the happening of the accident.
The Trial
The trial took place in late February/early March 2021. By reason of the COVID-19 pandemic, it was agreed that much of the evidence and submissions should be heard remotely. However, the parties favoured the evidence of the Claimant himself being given in person. Given the serious allegations made against him by the Defendant as set out below and the importance of his credibility, it seemed to the parties that the interests of justice called for Mr Long to give evidence in person and for this reason the first day of the hearing was accommodated in the Royal Courts of Justice, with Counsel, the Claimant's solicitor, the Claimant and the Claimant's wife attending in person. Other people, including the Defendant's solicitor and medical experts were able to attend remotely using the CVP system. The trial lasted in total seven days, of which a small part of the first day and the entirety of the final day was spent in dealing with submissions, the evidence spanning nearly 6 days, some of which were longer than the usual court day.
Whether it was strictly necessary for the Claimant's evidence to be given at an in-person hearing is a moot point. Like Mr John Kimbell QC, sitting as a Deputy High Court Judge in Hyde et al v Nygate (One Blackfriars Limited) [2021] EWHC 684 (Ch), I have found that remote hearings generally allow the Judge to have at least as good an opportunity to assess the reliability and credibility of a witness as do hearings in person. Whilst there may be other reasons to hold attended hearings when circumstances allow, I have not found any reason to think that my ability to assess witnesses in a remote hearing is less than satisfactory. It certainly did not do so in respect of the witnesses who gave evidence remotely in this case.
During the trial, I heard from the following lay witnesses called for the Claimant:
i) The Claimant himself, who provided statements dated 6 June 2018, 4 September 2019, 17 January 2020, 4 March 2020 and 18 September 2020;
ii) Mrs Andrea Long, the Claimant's wife, whose statement is dated 21 August 2019;
iii) Mr Peter Long, the Claimant's eldest son, whose statement is dated 28 August 2019;
iv) Mr Harvey Long, the Claimant's second eldest son, whose statement is dated 28 August 2019;
v) Ms Sophie Long, the Claimant's daughter, whose statement is dated 28 August 2019;
vi) Rev Anthony Long, the Claimant's father, whose statement is dated 9 September 2019;
vii) Mr Bernard McMahon, a former work colleague of the Claimant, whose statement is dated 5 August 2019;
viii) Mr Richard Smedley, an accountant who had provided professional services to the Claimant, whose statement is dated 7 August 2019;
ix) Mr Nicholas Weston, a former work colleague of the Claimant, whose statement is dated 30 July 2019;
x) Mr Paul Croston, a former work colleague of the Claimant, whose statement is dated 1 August 2019.
In addition, a statement of Mr Heinz Kneubuehl (another former work colleague of the Claimant) dated 15 July 2019 was relied upon by the Claimant. The Defendant did not challenge his evidence and it was not necessary for him to be called to give oral evidence.
The Defendant called Mr Craig Jones. His statement is dated 13 November 2018.
I heard from the following expert witnesses on behalf of the Claimant:
i) Dr Philip Paul Nichols, consultant neurologist, whose report is dated June 2018;
ii) Dr Julius H Bourke, consultant neuropsychiatrist, whose reports are dated 14 June 2018 and January 2020, with a supplemental letter dated 30 October 2020;
iii) Dr Katherine Pierce, consultant neuropsychologist, whose reports are dated 22 June 2018 and January 2020;
iv) Dr SS Surenthiran, consultant neuro-otologist, whose report is dated 3 October 2018.
I heard from the following expert witnesses on behalf of the Defendant:
i) Dr Dominic Heaney, consultant neurologist, whose report is dated 17 April 2020;
ii) Dr Jonathan Michael Bird, consultant neuropsychiatrist, whose reports are dated 24 April 2017, 2 January 2020, with letters dated 22 May 2017 and 16 September 2020.
iii) Dr Yvonne McCulloch, consultant neuropsychologist, whose report is dated 6 April 2020.
Joint statements have been prepared between experts of like discipline as follows:
i) The neurologists, Dr Nichols and Dr Heaney, dated 10 July 2020;
ii) The neuropsychiatrists, Dr Burke and Dr Bird, dated July 2020 and a supplemental statement dated 10 November 2020;
iii) The neuropsychologists, Dr Pierce and Dr McCulloch, dated 7 July 2020.
The submissions and evidence first six days of the trial was transcribed and hence I have available to me that transcript as well as my own notes of evidence. The transcript appears to be largely accurate though inevitably there are occasional points at which it appears erroneous. In the verbatim quotations in this judgment, I have taken the passages from the transcript without correction, though have noted where I think the transcript may be inaccurate.
I have been assisted in preparing this judgment by the written submissions, both opening and closing, from counsel for both parties. I am grateful to them for the efficient manner in which they dealt with the case and for their clear submissions on issues which are far from straightforward in fact. I should express particular gratitude to Mr Grant for his written chronology, since I have lent heavily on it in the preparation of this judgment and indeed it forms the basis though is not the sole source of the chronological presentation of medical records below. I have divided this chronology between the passages of my judgment dealing with Issues 1, 2 and 4, as set out below (that is say pre-accident, the accident to the Claimant being made redundant and events since the redundancy). Where medical records are referred to in other parts of the judgment, the relevant references should be found within those three parts of the chronology.
The trial bundle in this case ran, with the addition of extra documents included during the trial, to 3,857 pages. These pages include many (though it would seem by no means all) of the Claimant's medical records. During the trial reference has been made to many issues, some of which it seems to me are of little if any relevance. It is inevitably the case that a judgment following the trial of this length, during which so much material has been referred to, will be selective in its reference to that material. That is not to say that other material has not influenced me in reaching the conclusions below.
The Claimant's case in summary
The Claimant has a history of work in the IT industry, both as an employee and running his own company. He obtained a job with the Defendant as head of IT starting on 30 June 2014, earning £50,000 gross per annum. The job was subject...
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