CASE REPORT
1. Mrs S B was born in 1960 and so was 35 at the date of the accident in 1996.
She is now 40.
2. On the day of the accident the Claimant was driving home from work when the Defendant drove his car into the back of hers. She sustained a whiplash injury to the neck. She felt pain effectively immediately, but drove home. She went to work the following day, but visited her G.P. that evening. She continued at work for a week, and then returned to see her doctor. Since then she has suffered with disabling neck pain, and has been unable to continue in her job as an administrative manager.
3. Judgment was entered in 1998.
4. The main issue in the case was whether the Claimant was an honest witness
who was telling the truth about her disability and handicap. The defence solicitors
alleged almost from the outset that the Claimant was being dishonest. They started
videoing her in October 1997, and continued through 1998 into 1999. In February
1999 they served 199 Interrogatories, aimed at uncovering inconsistencies, exploring
how she was able to obtain a mortgage (if she was unable to work, as she alleged),
and enquiring about all sorts of other aspects of her life. Their attitude may
have been dictated by their failure to understand that severe whiplash injuries
are nowadays the subject of legal, as well as medical, expertise; they did not
seem to have any comprehension of how disabling a severe whiplash injury can
be. They certainly did not seem to consider that it was possible that a respectable
woman, who previously excelled at tennis and three day eventing, and who was
employed full time, might be genuine. Nor did they appear to find it odd that
she should remain out of work for years, and appear to give up her sports and
hobbies; they insisted that the whole presentation was a fraud. Unfortunately,
many insurers and their legal teams adopt the same approach, and proceed on
the basis either that severe whiplash does not exist, or that there must be
a substantial element of exaggeration
5. The Defendants obtained videos of the Claimant in 1997, 1998 and 1999. Their original, ridiculous intention was that they should disclose them only 10 days before trial. That seems to me to exemplify their attitude. The district judge ordered immediate disclosure. We called for "discovery" of all the usual video documentation, namely surveillance logs, reports to insurers and defence solicitors, invoices ditto; nothing was produced, and so we insisted that all the operatives who took the videos should attend for cross examination. The object, of course, is to discover how often they had watched her, but seen nothing (times when these clients often say they are stuck at home in agony). Interestingly, one of the enquiry agents had destroyed all his documents, apparently because the previous defence solicitors had told him that the case had settled! Of course the defence solicitors would have had copies, but despite our request for them six months before trial, when I called for them during my cross examination they were too difficult to find. One of the enquiry agents had concealed the true extent of his investigations (possibly innocently); we knew that one of the videos was not complete, because it showed a date on which his statement was silent; he therefore had to admit that there had been other occasions when he had watched the Claimant without seeing her. None of the documentation was ever produced, but of course by then the damage had been done to the credibility of the videos.
6. We asserted that the Claimant was an honest woman now, as she always has
been, and that she was a person of good character in the most literal sense
of that phrase; we sought leave to adduce the evidence of 24 witnesses to that
effect, including her G.P. The District Judge, no doubt besotted by the current
judicial teaching that all considerations must be subordinated to cost, refused
leave for 24 witnesses, and allowed two, apparently for the purpose of showing
the Claimant's "prowess" at tennis and riding. He seemed to have no perception
that the defence solicitors had mounted a vigorous attack on the Claimant's
honesty and character, and that she should be entitled to defend herself equally
vigorously. If he had analysed the issue correctly, he would have realised that,
if the defence considered the matter sensibly, they would either have to allege
a vast conspiracy against all the witnesses or, much more probable, would agree
the evidence and abandon their attack on the Claimant's character. Possibly
because the District Judge allowed only two witnesses, the judge on appeal permitted
only eight. Of course the end result of the District Judge's attempt to save
money was to increase the costs, but that seems to be moderately common at the
moment. Another possible effect was that the defence team still thought that
they could and should attack the Claimant's character, and her witnesses (who
variously said that she was an honest and genuine woman, who had been disabled
by the whiplash injury). They were undeterred by the fact that one of the witnesses
was the Claimant's G.P., who had seen her on 60 or 70 occasions in his surgery,
and who had also observed her out and about in the small town where she lived;
he watched the videos, and still maintained that she was genuine. So did another
G.P. (not the Claimant's), and various other respectable people.
7. The result of all this was that, instead of making a sensible offer, the
defence solicitors decided that they would put the Claimant through the legal
mincing machine. They took her case to trial, apparently supported by a respectable
neurosurgeon, video evidence, and some other peripheral evidence, all aimed
at showing her dishonesty.
8. A practical point which is always relevant to consider is that lay evidence
can have a profound impact on the presentation of a claim. It does not have
to be the G.P., but I have a small, general rule that, if a claimant can get
his or her G.P. to give evidence in support, they are probably genuine, and
will probably succeed on the issue of honesty.
9. One particularly interesting feature of the medical evidence was that the
Defendant's neurosurgeon had been asked by the defence solicitors (one of the
large, national firms) to delete the part of his report which set out his observations
on two sequences of video recordings of the Claimant. He did so, apparently
believing the explanation given, namely that the defence solicitors did not
want to alert the Claimant to the fact that she was being watched. Some months
later he wrote a further report in which he said "I have now (my underlining)
been supplied with" videos, on which he then commented. Reading that report,
one would never have guessed that he had commented previously on two of the
videos. What made the position even worse, though, was that he had changed his
comment completely; when he first saw the two videos, he said that they did
not change his opinion, and that opinion did not include an allegation of dishonesty.
On the second occasion, he said that they, together with the later ones which
had been shown to him, made him think that the Claimant was exaggerating her
symptoms; that was the reverse of the first opinion. Of course one has to remember
that doctors are not always familiar with our systems, but one of the effects
of the Woolf "reforms" is that doctors are finding that they are expected to
know more about the reporting process. It is more common now to see doctors
refusing to alter their reports. I felt that the end result of the alteration
of the original report, coupled with the potentially misleading wording of the
second report, and the complete reversal of opinion, was profoundly unsatisfactory.
I think the judge must have been of the same opinion; at one stage (without
having heard any evidence from the defence solicitors) he used the phrase "sharp
practice".
10. From a practitioner's point of view, it may be worth emphasising that it
is always cautious to check, by delicate cross examination, that there was not
a different version of a report, or a side letter dealing with relevant matters
not thought fit for general consumption.
11. A secondary issue, based on the allegation of dishonesty, was whether this
Claimant was, or could realistically have been, suffering from the effects of
a whiplash injury at the time of trial. She certainly gave the impression of
being crippled by pain, and it was her case that she had suffered from the effects
ever since the date of the accident. She had never said that she was completely
incapacitated, and for example had gone back to work for a week immediately
afterwards, had competed in horse events, had played tennis briefly (she had
been of a very good standard before the accident), and had improved occasionally
in the first couple of years. The defence neurosurgeon asserted in one of his
reports (disclosed to us two days before trial, although it had been written
months earlier) that, because the crash was at a low speed, therefore the Claimant
could not have suffered a whiplash injury of sufficient severity to give rise
to symptoms lasting all this time, and having such a devastating effect. He
quoted two medical papers which appeared to give credence to his theory, emphasising
that one of the papers had won an award. Fortunately, I had advised the Claimant
earlier in the proceedings that she would only win her case if she was supported
by a top quality medical opinion with real knowledge of whiplash injury. Professor
Michael Barnes and I edited a book a few years ago (Medical Aspects of Personal
Injury Litigation, published by Blackwell Science) in which he had written the
chapter on whiplash injury. As he spends nearly all his time as a neurologist
dealing with rehabilitation and muscle spasm, he seemed well suited as an expert.
He also has the advantage of being fair-minded. He reported, and gave evidence
at trial. I submitted to the judge that he was unlikely to hear more impressive
evidence given by an expert in a personal injury action. I thought Professor
Barnes was utterly convincing, and it was so supportive to be able to demonstrate
that all the opinions expressed by him in evidence were genuinely held, because
they also appeared in his chapter in the book. The defence neurosurgeon had
attempted to dismiss the chapter as a mere "review", as distinct from original
research, but he then had to concede that the whole purpose of a medical review
article was to set out the range of opinion on a topic, and then to try to explain
where the middle line of respectable opinion would lie. As that was exactly
what Professor Barnes had done in the chapter, the defence neurosurgeon eventually
had to agree that the chapter was excellent. Unfortunately for him, the chapter
demonstrated that the opinion he expressed was unfounded, and on the fringe
of respectable medical views. There was in fact a clear reference in the chapter
to the fact, which is generally accepted, that you can have a severe whiplash
injury from a low speed impact. In addition, there had been clear criticism
of the methodology used in both the articles produced by him. On any view, he
was producing medical papers which were not representative of the middle line
of medical thinking, but he did not alert the court to the fact that he was
being so selective. His evidence was rejected by the judge.
12. The Defendant was called to prove that the impact was at a slow speed. He
honestly said that the best estimate was that it happened whilst he was in first
gear (in a traffic jam on the M6). This was interesting because the defence
neurosurgeon had accepted without question that the speed was 10 mph or less;
I think that demonstrates an attitude of mind. Instead of thinking to himself
that this previously honest woman might be genuinely disabled, and that therefore
the low speed might not be accurate or crucial, he started instead from the
notion that the speed must have been low, that such speed could not have caused
the whiplash injury, and that therefore the Claimant was exaggerating her symptoms.
13. Last week, as I write this, the Master of the Rolls was urging courts not
to accord inappropriate respect to doctors. This case was a perfect example;
the judge was not keen on me attacking a neurosurgeon vigorously, but it soon
became apparent that his evidence was not of sufficient quality. In severe whiplash
injury claims, it is important to remember that a first rate expert is essential;
it is not sufficient just to go to the treating orthopaedic surgeon, or the
one who does all the broken legs; what is needed is an expert on whiplash injury,
who knows about current research, and can discuss the many difficult areas with
real expertise. It is tempting to think that low speed impact cannot cause severe
injury, but nothing could be further from the truth in whiplash injury. However,
without Professor Barnes I would have been unable to persuade the judge that
this respectable neurosurgeon was so very wrong.
14. As is becoming increasingly important in personal injury litigation, specialist
knowledge in whiplash injury can make the difference between success and failure.
If the allegation is that an apparently minor accident, and an equally minor
injury, have caused lasting disability and handicap, then a real expert will
be necessary.
24th January 2001
BILL BRAITHWAITE Q.C., who practises in brain and spine injury from Liverpool, Manchester and London.
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