Haden v Transport Accident Commission

[2018] VCC 647

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-16-05565

BENJAMIN THOMAS HADEN	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE O’NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	3, 4 and 7 May 2018
DATE OF JUDGMENT:	11 May 2018
CASE MAY BE CITED AS:	Haden v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2018] VCC 647

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:            Serious injury – plaintiff alleged to have struck his head when knocked from a bicycle in transport accident – subsequently developed epileptic seizures – whether onset related to transport accident, or the product of underlying genetic condition – development of psychological disorder in the nature of Post-Traumatic Stress Disorder, alternatively Major Depressive Disorder

Legislation Cited:     Transport Accident Act 1986, s93(4)(d)

Judgment:Leave granted to bring a proceeding at common law.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M A Hartley QC with Mr R Paoletti	Slater and Gordon Ltd
For the Defendant	Mr G Lewis QC with Ms J E Clark	Solicitor to the Transport Accident Commission

HIS HONOUR:

Preliminary

1       On 28 January 2012, the plaintiff was cycling near his home when he was struck from behind by a motor vehicle.  It is alleged he hit his head on the windscreen, cracking his helmet.  It was recorded he did not lose consciousness. He was taken to the Royal Children’s Hospital for investigation, but was discharged shortly afterwards.  He was subsequently observed by his general practitioner to be suffering from symptoms of a post-concussive disorder which, by March 2012, had developed into epileptic seizures.  He was diagnosed as suffering a Generalised Epilepsy Disorder[1] (“the Epilepsy Disorder”), although this had been asymptomatic prior to the transport accident.  He has required significant treatment from that time to the present.  Sensibly, Mr Lewis, for the defendant, conceded that if the Court was satisfied the onset of the epileptic seizures was causally related to the transport accident, then the consequences met the criteria for “serious injury”.

[1]Also referred to in the various reports as “Idiopathic Epilepsy Disorder”, “Generalised Seizure Disorder”, “Idiopathic Seizure Disorder”, “Primary Generalised Epilepsy” “Genetic Generalised Epilepsy”

2       Further, as a result of the transport accident, Mr Haden developed a psychological disorder diagnosed as symptoms of a Post-Traumatic Stress Disorder (“PTSD”); alternatively, a Major Depressive Disorder, the symptoms of which have affected him in various ways and restricted his social, recreational and academic pursuits.

3 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injury suffered in a transport accident on 28 January 2012.

4 The body function said to be lost or impaired is the brain, with the development of epileptic seizures. In addition, Mr Haden claims to have suffered a permanent severe mental disorder in the nature of symptoms of a PTSD; alternatively, a Major Depressive Disorder. The application is thus brought under ss(a) and ss(c) of the definition of “serious injury” contained in s93(17) of the Act.

5 Mr Haden, his mother, Ms Vanessa Haden, and neurologists, Professor Mark Cook, Associate Professor Ernest Butler and Professor Stephen Davis, were called to give evidence and be cross-examined. In addition, various affidavits of Mr Haden and members of his family, and medical and clinical reports and notes, were tendered into evidence. I shall not refer to all of that material in the course of this Judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this Judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.

Relevant background

6       Mr Haden was born in October 1996, was fifteen years old at the time of the transport accident, and is now twenty-one years old.  Prior to the transport accident, neither he nor any members of his immediate family had been diagnosed with epilepsy.

7       While at school, Mr Haden developed a condition known as Pragmatic Language Disorder (“the Language Disorder”) which affected his ability to communicate with others, in particular in the school setting.  In the course of cross-examination of Mr Haden and his mother, they were taken to various entries in notes and reports taken over his school years.  In 2003, a Dr Summerhays of the Dunsbury Way Clinic recorded that Mr Haden had significant difficulties with understanding and using spoken language, including a language disorder.[2]  In 2006, a speech pathologist, Ms Sonya Bates, noted he had severe difficulties with verbal problem solving and was easily distracted.[3]

[2]Defendant’s Court Book (“DCB”) 66

[3]DCB 72

8 According to notes of his general practitioner, he had difficulties with sleep,[4] and in 2010, was feeling unhappy, with poor concentration.[5]

[4]DCB 76

[5]DCB 77

9       According to emails passing from and to several of his teachers at school, he had problems with attention, understanding the academic curriculum,[6] was unhappy, had difficulty with social interaction, and was struggling with some aspects of his schooling.[7]  It was said that he was taken to his general practitioner with concerns about tiredness and disconnectedness.[8]  It was said that he was not paying attention in class.[9]  “I think something is very wrong” said the head English teacher at his school.[10]

[6]DCB 78

[7]DCB 80

[8]DCB 81

[9]DCB 82

[10]DCB 82

10      According to a Year 8 review, he was struggling with a number of areas of schooling, including mathematics and physical education.[11]

[11]DCB 86

11      In the course of cross-examination, Ms Haden responded to these matters.  She said that while her son did have difficulties with verbal problem solving, he was completely competent in non-verbal problem solving.  There was a period of time in 2010 and 2011 when he was unhappy, and with difficulties of energy and concentration, but this was because he was bullied over a period of approximately a year by other students at the school, particularly on the school bus.  This was resolved by 2011, and he did not continue to suffer any consequences after that time.  She accepted that he did have some difficulties with organisation and attention, and she sought academic support for these problems.  She said that he suffered some issues, like many other teenage boys entering senior school.  She said that sometimes he was slow to respond because of his slower processing of information, and that, according to some, this suggested a lack of concentration.  She said he just required more time than others.  She emphasised that he had a good relationship with friends and was very engaged in a range of sports.  The situation, she said, changed very substantially after the transport accident.

The transport accident and the consequences which followed

12      While riding his pushbike near his home in Mount Eliza, Mr Haden was struck from behind by another vehicle.  He has no real recollection of the accident.  There was no apparent loss of consciousness, and he was taken by ambulance to the Royal Children’s Hospital.  According to the police report:

“Driver has then collided with rear of bicycle causing cyclist to roll over bonnet and smash into windscreen.  Cyclist taken to Children’s Hospital re check up for any head injuries.  ... .”[12]

[12]Plaintiff’s Court Book (“PCB”) 165

13      The report went onto record Mr Haden’s head hit the windscreen.  His bicycle helmet was split.

14      According to the ambulance report,[13] it was recorded Mr Haden was hit from behind by a car:

“… AND EITHER HIS HEAD OR BACK HAS DAMAGED FRONT WINDSCREEN. LARGE BULLSEYE TO APPROX. 50% OF WINDSCREEN. PT’S HELMET (POLYSTYREEN PROTECTER) CRACKED BOTH FRONT AND REAR. NO LOC. PT WALKS TO SIDE OF ROAD, AV CALLED.”

(sic)

[13]PCB 181

15      Mr Haden was described as declining pain relief at the scene and that he did not appear distressed.

16      According to a report of the Royal Children’s Hospital,[14] it was recorded there was no apparent loss of consciousness and no obvious signs of a head injury.  Neurological examination was normal.  His Glasgow Coma Score (“GCS”) both at the scene and the hospital was recorded as 15.

[14]PCB 37

17      According to a report of his general practitioner, Dr Luke Carter, Mr Haden attended the practice on 31 January 2012 complaining of difficulty with concentration, irritability, headaches and nausea.  It was said he was suffering post-concussive symptoms.  Dr Carter said there were “signs of new cognitive impairment consistent with concussion”.[15]  These continued until 6 March 2012 when he again attended the general practice, having collapsed at home.  It was reported that when he stood up, he heard ringing in his ears, had blackened vision and fell backwards, jerking for about five seconds.  He became extremely drowsy. 

[15]PCB 22

18      He returned to the Royal Children’s Hospital, and a CT scan of the brain was said to be normal.  On 19 April 2012, the Royal Children’s Hospital again assessed Mr Haden, who complained of recurrent headaches, possible seizures and episodes of dizziness and fatigue.  An EEG performed on 8 March 2012 was said to be within normal limits.  Follow-up attendances showed an improvement in Mr Haden’s symptoms, and he returned to school in late May 2012.  A further EEG was carried out in October 2012, which provided findings consistent with the Epilepsy Disorder with photosensitivity.[16]

[16]PCB 21

19      It is unnecessary to trace Mr Haden’s symptoms, treatment and the progress of his epilepsy through to the present time.  He has been treated by a number of practitioners, provided with a range of medication, and his seizures have increased to the point where he is suffering seizures most days.  The condition is undoubtedly significant and disabling.  There is no prospect of significant improvement in the foreseeable future.

20      In 2012 and 2013, most of the concern and investigation related to Mr Haden’s seizures.  By September 2013, Dr Carter noted that Mr Haden complained of insomnia, flashbacks to the cycling accident, aggression at school and avoidance of cycling in team sports.  He said there were features of anxiety, depression and post-traumatic stress.  He was referred to a psychologist, Ms Fulvia Dee, who he saw over a period in 2013, and then was treated by another psychologist, Ms Anita Kopiec, until February 2016.  A diagnosis of PTSD related to the transport accident was made.  Symptoms included nightmares and flashbacks, avoidance behaviour, and withdrawal, with lowered mood and reduced motivation and energy.  Dr Carter noted he had been self-harming, with cut lines upon his forearms.  He had expressed suicidal ideation.

21      By June 2015, Ms Haden reported to the general practitioner increasing anxiety and depression.  Anti-depressant medication was prescribed.  He continued at school, although with difficulty.  Dr Carter considered he was suffering from PTSD and a Major Depressive Disorder. 

22      In 2017, Dr Carter referred Mr Haden to a psychiatrist, Dr Barbara James.  He was seen by another psychiatrist, Dr Michael Maloney.  According to a letter from Dr Maloney of November 2017,[17] he was suffering an Anxiety Disorder.

The expert medical evidence as to the relationship between the transport accident and the onset of epileptic symptoms

[17]PCB 29

23      I heard evidence from a number of neurologists, all highly qualified, impressive witnesses, holding senior positions in hospitals and having published a significant number of research papers.  It has been no easy task to determine which opinion to accept.

24      Evidence was given by Professor Mark Cook, a neurologist and epileptologist.  He, like other practitioners, concluded that Mr Haden had been suffering from the Epilepsy Disorder for a considerable period and before the transport accident.  However, he was quite asymptomatic before then.  There was no recording in any of the extensive histories provided of any reference to seizures.  He did not consider Mr Haden’s pre-accident Language Disorder as being significant in relation to the development of his Epilepsy Disorder or the seizures which followed the transport accident.[18]  He went on to conclude that Mr Haden had suffered a relatively mild brain injury, which was the triggering factor for the onset of the florid seizures and other symptoms.[19]

[18]Transcript (“T”) 77

[19]T77

25      In answer to a question put by me, he said:

“As I’ve mentioned in the report, I’ve seen it many times where an incident of some sort seems to have triggered the seizures and it’s easy to dismiss these as coincidence but it’s a very common observation and I think it’s highly likely to be correct.  An analogous situation would be someone who has – I’ve given examples before of having, say, a bad back through genetic predisposition to back disease but who lifts a heavy box and suddenly develops an acute prolapse of the disc.  No doubt there’s a genetic condition underlying all of that but a single event has pushed it over the edge, and there are many analogous situations in medicine where the person has a genetic problem, a metabolic problem, for instance, which might only become manifest under a particular circumstance.  Why that should happen when it might have happened before without incident, we don’t really understand but it certainly happens.  I don’t think you can get away from the fact that people come along with these epilepsies very commonly after there’s been a triggering incident.”[20]

[20]T77, Line (“L”) 31 – T78, L20

26      He said that a range of even obscure events may trigger the onset of seizures.  He gave the most unusual examples of the onset being caused after a carpal tunnel operation, or even with vigorous tooth-brushing.[21]  He said that there was support for his opinion as to the link between the transport accident and the triggering of the seizures because of the close temporal relationship. When provided with details of the findings of the general practitioner as to the various post-concussive symptoms that he observed in Mr Haden shortly after the accident, Professor Cook said these were significant, not only because of the symptoms, but also that they lasted over a considerable period of time and were observed by someone who, as an experienced general practitioner, was in a good position to make an assessment.  All of those matters confirmed his views.[22]  He said:

“So that’s quite unusual with a straightforward concussion and I think contemporaneous information described in this way is very powerful and particularly that he felt sufficiently strongly to refer him to a neurologist.”[23]

[21]T96

[22]T97-T99

[23]T99, L26-30

27      All of this, said Professor Cook, strengthened his view that Mr Haden suffered a significant brain injury in the transport accident.  He said all of the factors he referred to were relevant, but did not cause the underlying Epilepsy Disorder.  Mr Haden, he said, had a pre-existing predisposition and given the head injury was significant, it provoked the symptoms which would otherwise have remained asymptomatic.[24]  He concluded that from the surrounding circumstances, everything pointed to the trauma of the transport accident as being causative of the onset of symptoms, in particular epileptic seizures. 

[24]T101

28      He said that in his extensive experience, he had treated patients who had developed seizures as a result of relatively minor head trauma.  He was able to provide papers from other specialists to confirm his view.[25]  He said that while sometimes epileptic symptoms were provoked by a substantial head injury, often it could be relatively minor.

[25]Exhibit “A”

29      Next, evidence was given by Associate Professor Ernest Butler.  He is a consultant neurologist, although not one specialising in epilepsy.  Mr Haden was referred to him first in June 2013 by Dr Carter.  He concluded Mr Haden was suffering the Epilepsy Disorder.  He saw him again in 2013 and 2014.  He doubted whether the Epilepsy Disorder was related to the transport accident.  He was not aware that it was Mr Haden’s head which struck the windscreen, nor the damage to his bicycle helmet.  He was taken to the report of the general practitioner, and the post-concussive symptoms observed shortly after the transport accident.  He was not aware of that history, although accepted that it was likely Mr Haden had suffered some concussion. 

30      He was asked as to whether, given the nature and extent of the concussive injury suffered, it was likely the transport accident had triggered the seizures.  He said that it was possible, but it could not be proved.[26]  He said:

“In the report I put together in 2013 I said I didn’t think there was a relationship and as a general neurologist, not an epileptologist, I’m not aware of the medical literature in this area but I suspect that there isn’t much. I have certainly not heard about it before but there may be some literature to suggest that if someone has a head injury, they are more likely for it to trigger their genetic generalised epilepsy but I’m not aware of it.”[27]

[26]T112, L17

[27]T113, L10-18

31      The disclosure of the further information provided in cross-examination as to the post-concussive symptoms observed by the general practitioner, he said, made him a little less certain of his opinion.[28]

[28]T114, L4

32      Evidence was given by Professor Stephen Davis, neurologist.  He saw the plaintiff as a consultant in 2014 and 2017, and provided a number of reports.  He is, and has been, the Director of Neurology at the Royal Melbourne Hospital.  His curriculum vitae is impressive.  His area of speciality is in relation to cerebrovascular diseases and stroke.  While his learning and experience is extensive, he accepted Professor Cook would have superior knowledge of the literature in respect of epilepsy[29] and that Professor Cook’s credentials were unquestionably stronger than his in relation to epilepsy.[30]

[29]T121, L25

[30]T122, L13

33      Professor Davis recounted the history he received from Mr Haden, including that he remembered hitting his head on the windscreen, and then the road, that his helmet was split in two, and that he recalled the driver standing over him.  The ambulance report, he noted, said there was no loss of consciousness, that he was observed to walk to the side of the road, declined pain relief, did not appear distressed, and had a conscious state of 15 on the GCS.  He also noted that on examination at the Royal Children’s Hospital his GCS remained at 15, and there was no obvious sign of head injury and normal neurological examination.  He noted he re-attended the Emergency Department of that hospital on 4 March, with a possible epileptic seizure.  He received a history of the plaintiff’s Language Disorder in his school years.  He was provided with a neuropsychological assessment of Ms Louise Vernieux, of March 2013, who found that his cognitive profile was largely similar to that which was undertaken when he was in Year 7, in 2009, albeit with a likely decline in attention span, working memory span and concentration.  He concluded that Mr Haden had suffered a “mild” head injury without loss of consciousness and that it was likely that he had the Epilepsy Disorder.  Even notwithstanding the relatively short duration between the time of the accident and the onset of the seizures, he said that with the Epilepsy Disorder, given the relatively mild trauma of the incident, and Mr Haden’s behaviour as observed by the ambulance officers and at the hospital, the onset of frank seizures was not related to the trauma of the accident.  He said the seizures were constitutional in nature.  In particular, he noted there was no significant retrograde, nor post-traumatic amnesia. 

34      Professor Davis was cross-examined.  He generally disagreed with, but respected, the conclusion reached by Professor Cook.  He provided a focus for the different opinions between himself and Professor Cook.  He was of the view that the head trauma suffered in the incident was relatively minor, notwithstanding the fact that the windscreen had been cracked and the plaintiff’s helmet was split, while Professor Cook saw the accident as causing a more significant head injury.  He said:

“… trying to assess what damage has been [done] to the brain is really reflected not by the objective damage of the helmet hitting the windscreen but what’s the effect in terms of loss of consciousness, amnesia, alteration of conscious state at the accident scene; they are the ways that we assess severity of head injury, rather than the severity of damage to the object that the head has struck.”[31]

[31]T127, L25 – T128, L1

35      He said the nature of the impact to the head was not assessed by the damage to an object, but measured by the observed conscious state after the event.  He emphasised there was no post-traumatic amnesia, no measurable loss of consciousness, and a continuous memory.[32]  He accepted that subtle cellular changes could occur to the brain in the head injury suffered by Mr Haden, but he would have expected they completely resolved.[33]

[32]T128, L29

[33]T131, L8

36      He was then taken to the report of the general practitioner,[34] who observed a number of post-concussive symptoms, including difficulty with concentration, irritability, headaches and nausea, which were said to be consistent with concussion.  The general practitioner observed these symptoms continued over a considerable period and suggested new cognitive impairment.  He said that all these symptoms showed a psychological response to the emotional trauma of the accident.[35]  He said the magnitude of the head injury was not measured by such symptoms.  He disagreed with the interpretation by Professor Cook of these symptoms.  He also noted that in subsequent CT and MRI scans, there was normal brain imaging.[36]

[34]PCB 22

[35]T134, L25

[36]T136, L15

37      A number of reports of Professor Terence O’Brien were tendered into evidence.  Professor O’Brien was not cross-examined.  He is, again, an experienced neurologist and also an epileptologist.  He treated Mr Haden in 2014 at the referral of his general practitioner.  He received a history from other practitioners of the trauma of the transport accident.  He noted that Mr Haden was confused after the event and had ongoing problems with cognition, fatigue, sleep and headaches.  He noted the seizures started two to three weeks later.  An EEG of October 2012 showed generalised epileptiform changes and he, like the other practitioners, diagnosed the Epilepsy Disorder.  At the time he saw Mr Haden, he noted he suffered from stress related to his parents’ separation.  At that time his impression was:

“The history is somewhat atypical for a primary generalised epilepsy, or even a post-traumatic epilepsy, and given the fact that seizures have continued despite antiepileptic drugs, and that these are poorly tolerated, I feel that further comprehensive epilepsy evaluation is required before recommending further management changes.”[37]

[37]DCB 143

38      In a further report to the plaintiff’s solicitors of December 2015, Professor O’Brien noted that neuropsychiatric testing suggested Mr Haden had significant mood disturbance with depression and elements of PTSD, associated not only with the transport accident, but also with his parents’ separation.  He concluded:

“Genetic generalised epilepsy, which is the type of epilepsy that [Mr Haden] appears to have, is believed to be primarily genetically determined, and so therefore it is unlikely to have been specifically caused by his head injury.  In support of this there is no evidence of brain injury on the accompanying MRI. 

However, there is evidence that he has been suffering from ongoing psychiatric issues, with features of a Post Traumatic Stress Disorder since his head injury, and this certainly could be contributing to his poor seizure control.

… .”[38]

[38]DCB 146

39      Ms Louise Vernieux, neuropsychologist, assessed Mr Haden in 2013, 2014 and 2017, at the request of his solicitors.  She was provided with details of his language difficulties, including the earlier diagnosis of the Language Disorder by a psychologist in 2008.  She obtained a history of the circumstances of the transport accident.  She performed a range of neuropsychological tests.  When comparing the testing from 2009 to the time of her first report, Ms Vernieux noted that his auditory attention span and working memory were below average, reduced from 2009.  A range of other tasks and score results indicated a reduction in a range of cognitive areas.  She said:

“Ben’s cognitive profile was largely consistent with that found in 2009 by Dianne Summers.  His memory was not assessed in 2009 but during the current assessment his memory was in the above average range for verbal information, and very superior for visual information, so there has probably not been a significant decline there.  There is a likely decline in his attention span, working memory span, and concentration, but in a non-distracting environment this does not appear to affect his memory, perhaps as this was premorbidly a particular strength.  I suspect, however, that when in a normal, i.e., distracting and stimulating environment with lots of people his difficulties come to the fore, reducing his performance at school, including his memory.  There appeared to be a slight decline in his non-verbal reasoning skills, but this was slight and probably a testing artefact (different versions of the test were used), particularly as this has not been reported as a difficulty in his everyday life.  In regards to information processing difficulties, his slowed speed on some tasks may reflect this, but he showed good speed on other tasks (all visually based), and although his information processing speed may be slowed, I suspect his blank staring and vagueness are more likely due to fatigue and concentration difficulties.  I suspect there may also be an anxiety factor, perhaps explaining his attempts to feign and bring on seizures while on a school camp, which can be an anxiety provoking situation.  The observations of him talking to himself in public may also suggest anxiety, or something more.  I recommend that he has an assessment by a psychiatrist to explore this further.”[39]

[39]PCB 117

40      She considered that the bulk of his test scores were on par with those recorded in 2009.  Upon assessment in May 2014, Ms Vernieux found a number of changes from the 2013 assessment.[40]  She concluded that his cognitive state had worsened over the previous year in a range of areas.  She thought his epilepsy, the medication required to treat it, depression and PTSD, all contributed to the reduction in cognitive domains.  Again, his cognitive state had worsened and she noted that he was struggling with symptoms of PTSD and depression, including suicidal thoughts.  The epileptic fits and his psychological state, generally, were playing a role.

[40]PCB 131

Submissions on behalf of the Defendant

41      The defendant’s submissions may be conveniently summarised as follows:

·     Of the four highly qualified neurologists who have given an opinion as to the relationship between the transport accident and the onset of epileptic symptoms, only Professor Cook said the transport accident was causatively related.

·     In the course of his report, he used guarded language, including that “it is conceivable that these were triggered”,[41] “it is quite possible that the condition would otherwise have remained asymptomatic without head injury”[42] and “It’s possible as I indicated before that the seizures were triggered by the accident”.[43]  However, in explanation, Professor Cook said at the time he wrote those reports, he was not aware of any dispute about the causal link.  He said that the language he used should not be taken as reflecting any uncertainty in his views.[44]

[41]PCB 89, 94

[42]PCB 94

[43]PCB 104-5

[44]T86

·     Mr Lewis emphasised a number of factors mitigated in favour of the head injury as being minor, or extremely minor (as per the evidence of Professor Davis), including:

§       a Glasgow Coma Score at the scene of 15 out of 15

§       Mr Haden was ambulant and not distressed

§       a CT of the brain of 4 March 2012 being reported as normal

§       a neuropsychological testing showing no significant difference as between 2009 and 2013

§       normal neurological investigation at the Royal Children’s Hospital

§       no report of loss of consciousness

§       the plaintiff was able to identify that the driver of the vehicle came and spoke to him after the collision.

·        Mr Lewis submitted that the concussive symptoms identified by the general practitioner shortly after the transport accident, including headaches, nausea, difficulty with concentration and irritability, could all be explained as being related to a psychological reaction to injury[45] and, in any event, not of a sufficiently significant level to indicate an Acquired Brain Injury.  No details of reference by the general practitioner to new cognitive problems was provided.

[45]As per the evidence of Professor Cook

·        The reference by Professor Cook to research papers did not set out in detail the nature and extent of the head injuries involved.  According to the Canadian study by Tai and Gross, the head injuries referred to in Table 2 involved, in respect of mild injuries, some period of post-traumatic amnesia or loss of consciousness, which was not evident in the present case.  Professor Cook agreed to that.[46]  Likewise, the study by Diaz-Arrastia.  The paper by Hoshida and others made specific reference to increased risk of seizures, depending upon the severity of the head injury.

[46]T89, L5

·        Despite the reliance by Professor Cook on neuropsychological testing showing some reduction in memory span, working memory and concentration, Ms Vernieux was of the view there was little difference between the cognitive profile as shown in 2009, and that in 2013.  In any event, such factors may be easily influenced by psychological issues.

·        The evidence of Professors Butler and O’Brien ought be given significant weight, as they are both treating practitioners.

Analysis

42      I accept the opinions of most of the neurologists who have examined Mr Haden that prior to the transport accident, he suffered the Epilepsy Disorder which was asymptomatic, particularly in respect of epileptic seizures which have become prominent since the transport accident.  I accept this disorder is idiopathic, with a genetic basis.

43      Within a relatively short time after the transport accident, Mr Haden began to develop seizures which, despite treatment and medication, have continued to the present time, and on a very regular basis. 

44      The key issue in determining whether the onset of seizures was causatively related to the transport accident is the nature and extent of the head injury suffered by Mr Haden.

The evidence of Professor Butler

45      Professor Butler is an experienced neurologist and was an impressive witness.  His opinion was that he doubted the transport accident triggered the epilepsy.  His opinion should be respected, not only for the reasons stated, but also because he is a treating doctor. 

46      However, he is not a specialist epileptologist.  He did not receive details of the impact of the collision, including the damage to the windscreen and the split to Mr Haden’s helmet.[47]  He accepted that these matters indicated a very significant force to Mr Haden’s head.  He agreed that the general practitioner’s report showed symptoms of concussion.

[47]T108

47      Of significance was that he said it was possible the transport accident had triggered the epileptic symptoms, but said that that could not be proved.[48]  He was not aware of any medical literature on this subject.  He accepted, after being provided with additional information, that he was less certain about his opinion.

[48]T112, L17

48      On balance, particularly given Professor Butler’s lack of awareness of the literature, that in his practice he had not encountered a patient whose mild head injury triggered epileptic seizures and, further, that he is not a specialist epileptologist, I prefer the opinion of Professor Cook.  Professor Butler frankly admitted that there may be cases where a relatively mild head injury triggered epileptic episodes, but that he was just not aware of them.  This stands in contrast to Professor Cook, who is aware of such cases, not only in the medical literature, but had treated them himself.

The evidence of Professor O’Brien

49      Professor O’Brien is similarly well-qualified, and a specialist epileptologist.

50      However, I accept the submission of Ms Hartley that his report of December 2015[49] was specifically directed to whether the Epilepsy Disorder itself was caused by the transport accident, which it was clearly not.  His report does not specifically address the issue as to whether the transport accident acted as a trigger to bring about the epileptic seizures which have so dominated Mr Haden’s life.

[49]DCB 144-146

51      Given these matters, again I prefer the evidence of Professor Cook.

The evidence of Professor Davis

52      Professor Davis is an extremely experienced neurologist and gave his evidence in a most impressive manner.  Again, however, he is not a specialist epileptologist.  He admitted Professor Cook’s knowledge of the literature in the area of epilepsy was superior to his own and that Professor Cook was in a position to express an opinion.[50]

[50]T121-122

53      There was nothing in Professor Davis’ reports or evidence to suggest that he was aware of any of the literature referred to by Professor Cook, or had treated patients who had suffered the onset of epileptic symptoms after a minor head injury.

The evidence of Professor Cook

54      It was Professor Cook’s assessment that Mr Haden had suffered “a mild but significant head injury”.[51]  I am satisfied that, given his expertise as an epileptologist, he is in the best position to assess, from his own experience and from the literature he provided, the causative relationship between the transport accident and the onset of Mr Haden’s epileptic seizures.

[51]T84, L24

55      He emphasised the force involved in the incident sufficient to render the helmet cracked.  It was his view that certainly led to a head injury.[52]  He was convinced that the post-concussive symptoms, as observed by the general practitioner, which he said were typical in head injuries, and given their duration, helped to establish that there was a significant head injury.[53]  He emphasised the close temporal link between those symptoms and the transport accident.  Professor Cook described various incidents, some relatively minor, which, to his patients, had brought about epileptic seizures.[54]

[52]T98, L15

[53]T98-99

[54]T103

56      I have read and considered the research articles referred to by Professor Cook.  The article “Exacerbation of pre-existing epilepsy by mild head injury: a five patient series” by Tai and Gross was a study of five patients directed at the effect of mild head injury on patients with a pre-existing seizure disorder.  One patient had primary generalised epilepsy, and four localised epilepsy.  The patients had suffered a mild head injury with no, or transient, loss of consciousness, and no focal neurological deficits.  In all cases, the patients experienced the worsening of seizure control within days of the injury.  The report concluded:

“A close temporal relationship between mild head injury and a worsening of seizure control was observed in five patients with epilepsy.  Although further study is required, this observation suggests that a head injury that would be considered benign in the general population can have serious consequences such as recurrence of seizures and medical intractability in patients with epilepsy.”

57      The extract further noted that the underlying generalised condition made patients more susceptible to the onset or aggravation of seizures from minor head injury:

“Mild head injury may be sufficient to tip the balance in favour of seizures at a higher rate than observed in normal individuals.  Whereas in non-epileptic individuals it may be necessary for the head trauma to be severe enough to set up an epileptic focus in order to manifest as a seizure disorder, epileptics already have such circuitry in place and may need only tip the system in favour of diminished inhibition or increased excitation.”

58      Mr Lewis relied upon the injuries referred to in Table 2, but in my view that table referred to a general classification of head injuries and not those specifically encountered by the test patients.  The report noted that stress may also provoke seizures in epilepsy and, further, that stress associated with a head injury or a motor vehicle accident could potentially be a trigger.  Of the five patients observed, there was no loss of consciousness in four, and only a brief loss of consciousness in the fifth.  I accept this research paper is supportive of the propositions advanced by Professor Cook.

59      In a Japanese study, “Head Trauma Related Epilepsy”, Hoshida and others:

“Examined nine patients with trauma associated epilepsy and post-traumatic epilepsy.”

60      The report concluded:

“Trauma associated epilepsy usually occurs within one year after mild head trauma and sometimes shows normal MR findings or hippocampal sclerosis.”

61      A number of the patients did not suffer any loss of consciousness after the mild head injury.  The report observed that post-traumatic seizures may occur even after mild head injury.

62      The final paper, “Neurophysiologic and neuroradiologic features of intractable epilepsy after traumatic brain injury in adults”, authored by Diaz-Arrastia and others, concerned an observation of twenty-three patients who suffered traumatic brain injury before the onset of epilepsy.  The study made reference to mesial temporal lobe epilepsy and neocortical epilepsy.  I am not sufficiently familiar with this terminology to determine whether the study is relevant for the issues in the present case.

63      While not professing sufficient expertise to finely analyse these research papers, I accept that the first two papers generally support the opinion of Professor Cook, that relatively mild head injury, including that which does not produce loss of consciousness, may be sufficient to trigger epileptic seizures in patients with a pre-existing vulnerability, as is the case with Mr Haden.

Conclusion

64      While accepting that all of the neurologists who have provided opinions in this case are impressive and experienced practitioners, for the reasons given, I prefer the opinion of Professor Cook.  I accept his evidence that Mr Haden suffered a traumatic head injury in the transport accident and, while it is uncertain whether it was his back or head which hit the windscreen, the fact that his helmet was split shows evidence of some significant force involved. 

65      I accept Professor Cook’s view that close temporal relationship between the injury and the onset of symptoms, as observed by the general practitioner, strengthen his view.  As he said in evidence, there is no other surrounding incident or condition which would suggest itself as a trigger for the onset of the epileptic seizures. 

66      Of most significance, in my view, is the fact that Professor Cook has experienced, with his own patients, the onset of epilepsy in predisposed patients after relatively minor head trauma, which view is supported by the research papers to which I have referred.

67      While the post-concussive symptoms observed by the general practitioner may possibly be explained, as was Professor Davis’s opinion, as being a psychological reaction to trauma, I prefer the opinion of Professor Cook that they represent a measure of not only the force involved in the head injury, but that the duration of the symptoms also provide a guide to its severity.

68      I accept the evidence of Professor Cook that the fact that there was no loss of consciousness, and Mr Haden appeared able to communicate without distress after the accident, does not mean he did not suffer a significant head injury.  I do not view the neuropsychological assessment subsequently carried out by Ms Vernieux, and compared to the 2009 assessment, as being a matter of significance one way or the other.

69      All in all, I am satisfied the transport accident did act as a trigger to bring about the epileptic seizures upon a person who had an underlying vulnerability.  I am satisfied of the causal link between the two.  Given the concession by the defendant that the epileptic symptoms meet the definition of “serious injury”, the plaintiff’s application succeeds.

70      I shall make subsequent orders including as to costs.

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