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Beware of the "eggshell personality"

Morrow v Shrewsbury Rugby Union Football Club Ltd
High Court (QB) (Manchester)
21 February 2020

Edward Cleary reviews the judgment of Mrs Justice Farbey in Morrow v Shrewsbury Rugby Union Football Club Limited (2020) and considers the causal implications for insurers dealing with claims brought by claimants with pre-existing health issues.

Background

This claim relates to an unfortunate accident which occurred on 28 February 2016 when the claimant was struck on the head by a rugby post, knocking him unconscious. He sustained facial and skull injuries which had fully healed prior to trial. However, he claimed that the accident also caused a resurgence of his previous epilepsy and a "new somatoform disorder" which in turn caused him to give up work as an Independent Financial Adviser.

The claimant accepted that it was unlikely he had suffered any significant brain damage but complained of cognitive complaints reflecting his psychological state prior to the accident, a relapse of pre-existing epilepsy in the form of two seizures attributable to mood disturbance and compounded by poor sleep, back pain, hearing problems, tinnitus and balance issues.

The claimant had a significant pre-morbid history, including fatigue, insomnia, stress, anxiety, palpitations and migraine. The defendant relied upon an email sent by the claimant's wife to his GP just 9 days prior to the accident describing him as suffering from a number of symptoms, but particularly fatigue, as to his ability to continue working. It argued that the claimant had on multiple occasions given a misleading picture about his pre-accident medical history and described his post-accident symptoms in "extravagant terms".

The defendant contended that the claimant's pre-accident presentation bore a "striking correlation" with his post-accident presentation. It did not accept that he had suffered any significant injury beyond the short term effects of a head injury and post-concussional symptoms. The defendant also submitted that it should not be held responsible for the claimant's mistaken belief, fuelled by the jointly instructed brain injury case manager and his treating neuropsychologist, that he was suffering from brain damage.

Vulnerable party

On application by the claimant, an intermediary was appointed by HHJ Bird under the court's general case management powers on the grounds that the claimant suffered from significant anxiety and depression which made him a vulnerable party. A 'ground rules' hearing was held prior to trial and directions given as to the role of the intermediary. In the event, the claimant gave evidence "forcefully and fluently", causing Mrs Justice Farbey to express strong reservations as to whether any of the ground rules were necessary and conclude that the intermediary served "no useful role".

The Claimant's reliability

The defendant did not maintain that the claimant was dishonest but asked the court to find that his evidence was unreliable and throughout the course of her judgment Mrs Justice Farbey found that his evidence was unreliable in a number of significant respects, including:

  • "…the claimant minimised his pre-accident partial seizures in order to dramatise the post-accident partial seizures."

  • "I do not accept that the claimant has given a full or accurate picture of his stress levels prior to the accident."

  • "The claimant's failure to mention pre-existing symptoms similar to those he encountered before trial…is indicative of minimising his pre-accident health problems."

  • "I did not regard what the claimant told the court or told others about his pre-accident stress, anxiety and fatigue as reliable."

  • "…the claimant was seeking to minimise his pre-accident back problems so as to maximise his post-accident problems."

Mrs Justice Farbey also found that the claimant's wife, who attempted to row back from the email she had sent to the GP, had "exaggerated the effects of the accident", her responses to questions "lacked clarity and were evasive" and she "presented as an abrasive witness".

Causation

Despite the defendant's encouragement, Mrs Justice Farbey saw no reason to depart from the traditional 'but for' test or to substitute her own value judgment. Whilst hindsight showed that the neuropsychological treatment was not appropriate, it did not "obliterate the defendant's wrongdoing" or break the chain of causation as an intervening act. The claimant did not act unreasonably and was not doing anything other than trying to mitigate his loss.

The claimant submitted that his pre-accident illness "made him vulnerable to greater or different psychiatric injury than otherwise". The defendant was forced to accept some vulnerability as its expert psychiatrist diagnosed a pre-existing somatoform disorder.

Mrs Judge Farbey stated as follows in paragraph 236 of her judgment:

"In Page v Smith, the House of Lords held that it was no answer to the claim that the claimant was predisposed to psychiatric illness, nor that the illness took a rare form or was of unusual severity. There is no difference in principle between an eggshell skull and an eggshell personality. I accept that the claimant had an eggshell personality which caused a somatic reaction to the accident."

This led her to conclude that "the accident caused a severe somatic and psychiatric reaction which, but for the accident, would not have happened and which the claimant has been unable to manage", his reaction to the accident resulted in the "recandescence of the pre-existing epilepsy" and but for the accident "he would not have stopped work when he did".

Mrs Justice Farbey did, however, accept the evidence of the defendant's psychiatrist that, but for the accident, the claimant (who was 46 years old at the time of the accident) would have been unable to continue working as an IFA beyond the age of 55 due to his significant pre-morbid history, therefore capping by far the largest element of future loss.

Comment

Although it is essentially an application of the general principles with which defendants will be very familiar, the judgment of Mrs Justice Farbey will be of interest to those dealing with claims brought by claimants with pre-existing health issues. Whilst the accident in the instant case resulted in a head injury, the underlying analysis is equally applicable to chronic pain cases. It is often the case that claimants who go on to develop a chronic pain condition arising out of a seemingly minor accident have a significant and relevant pre-morbid history.

Provided that some personal injury was foreseeable, Morrow makes it clear that it is no answer to say that another, less vulnerable person would not have suffered to the same extent. Going back to basic principles, the defendant must take his or her victim as they find them, so that the defendant is liable for the whole damage even though its severity or extent has been increased because of the victim's pre-existing weakness or susceptibility to harm. There is no difference in principle between an 'eggshell skull' and an 'eggshell personality'.

However, this judgment does not prevent defendants from running the argument, provided it is supported by appropriate expert evidence, that the claimant would have been in largely the same position but for the accident on account of his/her pre-morbid history. That is different and distinct from cases where the claimant has had an unusually severe reaction to a particular event. As ever, expert forensic analysis will be absolutely crucial to causation.

Mrs Justice Farbey clearly grappled with the correct label for the claimant's diagnosis, particularly in the context of the psychiatry evidence, and it is possible that the introduction of ICD-11 from 2022 will bring some clarity. The updated guidelines include the new diagnosis of Chronic Primary Pain which is intended to fill the 'gap' in relation to medically unexplained pain (i.e. pain which cannot be explained organically or psychologically). However, whilst the label used to explain the claimant's presentation might assist with framing prognosis, causation will quite rightly continue to be determined on the individual facts.

The fact that the claimant had misperceived his injury was largely irrelevant. As far as he was concerned, he had suffered a head injury (which was a matter for others to diagnose and treat) and that had a devastating effect on his ability to work. Although the claimant's misperception had been reinforced by wrongly-targeted therapy, that did not break the chain of causation. The case manager had been jointly instructed under the Rehabilitation Code and the defendant was not obliged to follow or pay for her recommendations.

Morrow also raises an interesting practice point about vulnerable witnesses. Whilst in the context of criminal proceedings, Parliament has determined which witnesses are to be treated as vulnerable and so eligible for special measures, there are no specific provisions dealing with vulnerable parties in the Civil Procedure Rules. Following a consultation in August 2019, the Civil Justice Council recommended that the CPR should be amended to focus the attention of all civil judges, parties and advocates on the issue of vulnerability. In the absence of amendment, the court has a general case management power to consider such adjustments and make appropriate directions, as happened in the instant case.

Whether an intermediary or similar is necessary requires an individual assessment of need.

Contact

For further information or to discuss any of the issues arising from this case, please contact Edward Cleary, Senior Associate on +44 (0)161 604 1529 or at edward.cleary@dwf.law.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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