Sherwood v Transport Accident Commission

[2015] VCC 1828

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-14-04834

DONALD FREDERICK SHERWOOD	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	9 and 10 December 2015
DATE OF JUDGMENT:	15 December 2015
CASE MAY BE CITED AS:	Sherwood v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2015] VCC 1828

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT

Catchwords:             Serious injury application – brain injury – injury to spine – left ankle and left shoulder following motorcycle accident – plaintiff left with amnesia known as Focal Retrograde Amnesia – nature and extent of brain injury – disentangling consequences of various injuries – whether consequences “very considerable”

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

Judgment:                Leave to the plaintiff to bring common law proceedings.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Clements QC with Ms C Spitaleri	Slater & Gordon
For the Defendant	Mr G Lewis QC with Mr P Gates	Solicitor to the Transport Accident Commission

HIS HONOUR:

Preliminary

1       On 6 December 2008, Mr Sherwood fell from his motorcycle when struck by a truck.  He slid along the bitumen and ended up trapped under the truck.  He suffered a closed head injury, injuries to his cervical and lumbar spines and injuries to his left shoulder and left ankle. 

2       After two months, he was able to return to his work with a construction company, initially part-time and then full-time.  He is presently working full-time, earning more than before the transport accident.

3       A significant aspect of his closed head injury is a loss of memory, called Focal Retrograde Amnesia (“FRA”), which he said developed immediately after the accident.  He said he has lost the personal memories of anything before the accident.  In addition, he suffers a range of other psychological issues.  He continues to suffer pain and restriction from his physical injuries, in particular, from the spine.

4       At the conclusion of evidence and submissions on 10 December 2015, I granted leave for Mr Sherwood to bring common law proceedings, having been satisfied the organic brain injury was a “serious injury”.  These are the reasons for that finding.

5 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injuries suffered in the course of a transport accident on 6 December 2008. There are several body functions said to be lost or impaired:

·the brain

·the spine, including the cervical and lumbar spine

·the left ankle

·the left shoulder.

6 The application in respect of each body function is brought under ss(a) of the definition of “serious injury”, contained in s93(17) of the Act.

7 Mr Sherwood and a clinical neuropsychologist, Dr Peter Dowling, were called to give evidence and be cross-examined. In addition, affidavits of the plaintiff, various members of his family, medical and radiological reports and other material, were tendered in evidence. Because of the conclusion I have reached, it is unnecessary for me to refer in any detail to material relating to Mr Sherwood’s various other physical injuries, save to the extent it is necessary to disentangle the consequences of those injuries from the closed head injury. 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

8       Mr Sherwood is now thirty-nine.  He was thirty-two at the time of the accident.  He is married with a three-year-old son.  He was born in country Victoria and completed Year 12.  After a carpentry apprenticeship, he moved to Melbourne and worked for a number of construction companies.  Mr Sherwood was obviously competent and successful in that field and rose to become a manager for Icon Constructions, working 60 to 70 hours a week.

9       Mr Sherwood was a keen and expert water-skier and spent much of his recreational time on the water, including in ski races.  He went to the gym, played squash and enjoyed outdoor activities, including camping, fishing and shooting.  He described himself as extremely fit and healthy.

10      Mr Sherwood had no prior health issues, in particular, of a psychological nature.

The transport accident and its consequences

11      On 6 December 2008, Mr Sherwood was riding his motorcycle to work.  He said a truck turned against a red light in front of him and collided with his motorcycle, causing him to bounce along the bitumen.  He became trapped under the truck and had to be removed by the fire brigade.  He was taken to The Alfred hospital, where he spent about four days.  According to the hospital records, the injuries said to have been suffered included injury to cervical spine, altered conscious state, hyperextension of left shoulder while trapped, “… poor short term memory > NO EVENT RECALL, BELIEVES HE DROVE HIS CAR TO WORK”,[1] pain along lower sternum.[2]  

[1]Plaintiff’s Court Book (“PCB”) 37

[2]PCB 37

12      According to a report from The Alfred hospital:

“His CT brain revealed a small left temporal subdural haematoma.  Management of this head injury was conservative.”[3]

[3]PCB 41

13      According to his affidavit, Mr Sherwood found, after the accident, that he did not recognise members of his family who came to see him in hospital.  In fact, he could not remember very much of his life, including in country Victoria, his schooling, working life, social life and friends. 

14      At The Alfred hospital, he registered a Glasgow Coma Score of 14.  An occupational therapy assessment that was carried out on 4 December 2008 made no reference to any memory loss, although, according to the evidence of the neuropsychologist, Dr Dowling, the tests undertaken were not sufficiently sophisticated to detect significant memory loss.

15      After discharge from The Alfred hospital, Mr Sherwood lived with his sister for six or eight weeks.  According to her affidavit, she confirmed that from his time in hospital, he suffered memory loss.  She said he could not make decisions, including as to whether to eat.  This went on for months.  After Mr Sherwood returned to live in his own house, his sister had to telephone him regularly to ensure that he was eating properly and to remind him of various events.  Subsequently, she said that when they went home to Donald, he could not remember the names of friends and family members.  She and others tried to trigger his memory by showing him old photographs and videos.  He became upset.[4]

[4]PCB 26

16      An affidavit of Mr Sherwood’s mother made the same sort of comments.  She said that his personality changed significantly after the accident, including that he became volatile and quick to come to temper.

17      Despite his injuries, Mr Sherwood was only off work for about two months, then returned, starting at 20 hours per week, building up to full time, and working for Icon Constructions.  He said this was a very difficult time.  It was hard to interpret building plans, and he became totally overwhelmed trying to work out what to do.  He had to teach himself many aspects of the work.  This involved reading handbooks, spending time on the internet, checking plans, safety material and other sources.  He did this every day.

18      Mr Sherwood was reviewed by the Neurosurgery Outpatient Clinic at The Alfred hospital on 21 January 2009.  A repeat CT brain scan on 14 January 2009 showed “… complete resolution of the haematoma”.[5]  Mr Sherwood was said to be very well, with no neurological nor cognitive abnormalities.  He was told he could commence driving and working.  He was discharged from the clinic.

[5]PCB 42

19      Mr Sherwood’s general practitioner, Dr Uy Kimpang, referred him to a rehabilitation specialist, Dr Michael Ponsford, whom he saw in October 2009.[6] 

[6]PCB 45A

20      Of significance, is the letter of referral dated 2 October 2009.[7]  It says:

“Donald had a motorbike accident in December 2008.  He sustained multiple injuries including a cerebral bleed.  Since the accident he was noted to be confused, has poor short-term memory and long term memory impairment.  He also complains of headaches, ringing of his ears.  He has never seen anyone since discharged from The Alfred.  His family came today wanting him to be properly assessed and managed in relation to the brain injury.”[8]

[7]PCB 53

[8]PCB 53

21      To Dr Ponsford, Mr Sherwood described the various physical injuries for which he had been receiving regular chiropractic treatment.  He reported tinnitus in both ears and felt his hearing had been reduced.  Dr Ponsford noted he had returned to work as a manager on a construction site.  Mr Sherwood said his job was very demanding, working between 60 and 90 hours per week.  He said he had ongoing cognitive, behavioural and emotional changes, including reduced concentration, impaired short-term memory and speed of thinking.  Mr Sherwood described retrograde amnesia of five minutes and post-traumatic amnesia of about three days, with some vagueness beyond that.  As a result of this and the findings on the CT scan, Dr Ponsford thought he had sustained a moderately severe closed head injury with ongoing cognitive impairment.  He suggested neuropsychological evaluation.  There was no registered complaint of long-term memory loss of his life before the accident.

22      Dr Ponsford assessed Mr Sherwood again in January 2010 and he continued to report mild cognitive and behavioural changes.  He was noted to live independently and be able to undertake all his activities of daily living.  He had returned to driving and said he was generally coping well at work.  Again, there was no registered report of gross memory loss.

23      In October 2011, Mr Sherwood was referred to Mr Simon Braham, an ear, nose and throat specialist.  He complained of hearing loss and tinnitus.  Mr Braham thought the hearing loss was related to working on a building site.  The issue of vertigo was raised and it was recommended he consult a neurologist.

24      Dr Ponsford reviewed Mr Sherwood again in December 2012.  He continued to report ongoing symptoms of the brain injury, including cognitive impairment, easy fatigability and decreased high-level balance.  Dr Ponsford thought he was progressing well.[9] 

[9]PCB 47-8

25      Earlier, in February 2010, Mr Sherwood was assessed by Dr Daniela Petrov, clinical neuropsychologist. She reported retrograde amnesia of only a few minutes, and consistent memories were established two weeks later.  He said he had difficulty recalling conversations six weeks ago and that his memory was “extremely bad”.  He would have to check and recheck things to ensure he had not forgotten.  He used a diary to recall information.  He said his mood fluctuated and he was short-tempered when tired.  Neuropsychological testing revealed average to high-average verbal and non-verbal intellectual abilities.  General memory function was good and planning and organisational skills intact.  Dr Petrov said:

“His attention and working memory capacity was excellent however higher cognitive difficulties in the control of attentional processes were noted throughout the assessment.  Furthermore, slowed complex problem solving difficulties and reduced processing of complex information was indicated.  His elevated stress symptomology, fatigue and pain levels likely exacerbate his current cognitive difficulties however cannot account for the results entirely.  Indeed, the current neuropsychological evaluation is consistent with a mild-moderate traumatic brain injury.”[10]

[10]PCB 55

26      Dr Petrov provided a range of strategies.[11]

[11]PCB 56

27      Dr Ponsford saw Mr Sherwood in 2015 for the purpose of providing a medico-legal report.  At that consultation, Mr Sherwood said he had a complete inability to remember any event before the accident and could only remember “… glimpses of the past but nothing really significant”.[12]  He said he was very frustrated when he met people and could not remember who they were.  He also reported lower mood, depression, frustration and was becoming easily irritable.  He also reported being fatigued.  Dr Ponsford concluded:

“… Mr Sherwood has sustained a mild to moderate traumatic brain injury in his motor vehicle accident.  The evidence for this is that an initial cerebral CT scan was reported to reveal a small frontotemporal subdural hematoma and by self report he reported a period of post-traumatic amnesia following his motor vehicle accident.  His major complaint today related to a significant retrograde amnesia which, as outlined by Dr Peter Dowling, neuropsychologist, is unusual following traumatic brain injury.  Personally, in my experience in treating traumatic brain injury in the rehabilitation setting for twenty years, I am not familiar with this condition and would suggest you obtain further opinions regarding it from neuropsychologists and psychiatrists who manage his condition.  Nonetheless these symptoms are extremely distressing to Mr Sherwood and impacting significantly on his current day to day life.”[13]

[12]PCB 50

[13]PCB 51

28      After those initial assessments and treatment, Mr Sherwood has had little, if any, treatment for his closed head injury.  He takes some over-the-counter pain medication for the various physical injuries. 

29      As I said earlier, Mr Sherwood returned to employment with Icon as a project manager within a relatively short time after the accident.  In March 2012, he said he wanted to “expand my career”[14] and wanted a fresh start away from people whose names he could not remember.  He started work for another construction company, Pirovic, which is a smaller company involved in the construction of less substantial buildings.  He has become site/project manager for that company, his work is going well, and in the financial year ended 2014, he earned $177,000, compared to $128,000 in the financial year ended June 2008.  With Icon, he would work on 30-storey buildings, but with Pirovic, they were small, 5-storey buildings, usually residential units.

[14]PCB 9

30      Mr Sherwood says he suffers a range of consequences from the brain injury when he is at work.  He becomes exhausted, particularly in the afternoon, goes home to bed and falls asleep early.  He suffers fatigue and tiredness on the weekends.  He has difficulty with time management and organising his work.  He has to use a diary, notes and a calendar to remind himself of meetings, work issues and instructions given to other employees.  When on a building site, he controls a number of sub-contractors, up to forty.  He has difficulty quickly processing information and sometimes loses concentration.  He experiences vertigo and dizzy spells on construction sites.  The construction work is made harder because of his physical injuries.  His wife reminds him of things, including to take his lunch to work.  Because Pirovic is a smaller company, he says he was able to become a project manager which he would not have been able to do at Icon.

31      Mr Sherwood has barely been able to go water skiing, although this would seem to be largely related to his physical injuries.  Likewise, he has not resumed squash nor going to the gym, although has done some camping and shooting.

32      He says sometimes he feels totally overwhelmed with all the information and that his brain becomes jumbled, particularly at work.  He says he has short-term memory loss and is forgetful.  He often drifts off and needs his wife to prompt him at social occasions.  He becomes anxious and depressed and very frustrated.

33      By far the most significant consequence is the loss of memory of his whole life before the accident.  He has learned, or been told of some things, including something of his schooling, work and social life, but has no actual memories himself.  He finds this most frustrating and embarrassing.  According to his sister, Lennette, this started from the accident.  She said sometimes he was able to “bluff” his way through situations where he could not remember someone’s name.  She would walk behind him and prompt him as to the names of people in Donald.  He could not remember a great aunt with whom he had been close.  She said his personality had changed significantly and he had become more aggressive.  On occasions she has seen him visibly upset and in tears.

34      Likewise, Mr Sherwood’s mother, Maureen Sherwood, observed significant changes.  At the outset, the family were preoccupied with physical injuries and did not realise the extent of his brain injury.  He forgot things.  He did not say anything about the extent of his memory loss in order not to upset his family.  They did not raise it with him for the same reason.  Photographs and videos did not prompt his memory to return.  She said he was not the type of person to complain.

Consultant medical opinions

35      Mr Sherwood was examined on a number of occasions between 2013 and 2015 by Dr David Weissman, consultant psychiatrist.  In the first report, Mr Sherwood said he had no conscious memories or flashbacks of the accident for which he had total amnesia.  Indeed, he had amnesia for large parts of his life before the accident and could not remember much about his upbringing or childhood, birthdays or old friends.  This, he said, was one of the things that got him down.  Mr Sherwood said his emotional state was up and down and sometimes he felt depressed.  He was frustrated and, on occasions, very cranky.  Dr Weissman said that Mr Sherwood had two main groups of Acquired Cognitive Injury.  Firstly, he had “classical symptoms”, including slowing and impairment of attention, concentration, short-term memory and speed of information processing, as well as tiredness and problems with dizziness and balance.  The second group was amnesia for large parts of his life, causing significant sadness and depression.  Dr Weissman considered Mr Sherwood had suffered a Chronic Adjustment Disorder with Depressed Mood and Anxiety.  He said that the head injury was moderately severe. 

36      In his final report,[15] Dr Weissman said Mr Sherwood was suffering FRA.  Although outside his area of expertise, he said probably that was in part organically-based and, in part, psychologically based.

[15]PCB 180

37      On behalf of the defendant, Mr Sherwood was examined by Dr Brendan Hayman, psychiatrist, in April 2014.  Dr Hayman noted the significant memory issues, that Mr Sherwood had lost all memories of before the accident and had only occasional glimpses of his past life.  Dr Hayman said, diagnostically, Mr Sherwood had impairments in complex integrated cerebral functioning as a result of the closed head injury.  He diagnosed a Chronic Adjustment Disorder. 

38      Mr Sherwood was also examined by Professor Stephen Davis, neurologist, in July 2014.  Professor Davis noted the extensive memory deficits, including difficulty with remembering things before the accident.  Mr Sherwood said he coped fairly well on a day-to-day basis, was bothered by constant fatigue, was not a good sleeper and that he had a personality change since the accident.  Professor Davis described the head injury as “significant”.  He said the subjective complaints about memory were most unusual given Mr Sherwood was able to largely cope with day-to-day activities.  Professor Davis said that was in contradistinction to the usual history of patients where the memory loss was recent and short-term. 

39      A critical issue in determining whether Mr Sherwood has suffered FRA, is the opinions of the various neuropsychologists retained in the case.  I have already referred to the opinion of Dr Petrov, who assessed Mr Sherwood in February 2010 and although Dr Petrov did not conclude Mr Sherwood was suffering FRA, she did note the history of “extremely bad” memory.

40      The other neuropsychologists retained in the proceeding are Dr Stargatt, who assessed Mr Sherwood in 2013; Dr Dowling, who tested him in 2014 and, for the defendant, Dr Gibbs, of May 2014.  It is not necessary for me to assess in details these various reports, as I am satisfied that the conclusions drawn from the testing undertaken are all similar, that is, that as a result of the traumatic brain injury, generally described as a moderate, Mr Sherwood suffered a range of higher level functioning deficits.  These varied between the various assessors.  Such a variation was explained by Dr Dowling in evidence as being no more than the usual fluctuations in testing and reporting one would normally find on neuropsychological assessments. 

41      Dr Stargatt described a complicated mild to moderate brain injury.  She noted a significant decline in memory function since the accident.  She said there was a mild to moderate deficit in language skills and in executive function, including verbal fluency and behaviours, and mild difficulty with short-term memory and new learning.  Significantly, as part of the history, Dr Stargatt said Mr Sherwood reported that for the first two to three years after his accident, he tried to brush off its effects.  People started to talk about it and this upset him.  Dr Stargatt also noted significant problems with Mr Sherwood’s long-term memory and that he had lost his autobiographical memory.[16]

[16]This was described by Dr Dowling in evidence as the inability to recall personal experiences of past events; for example, remembering where you were on a certain date.  It is the opposite of semantic memory, which involves the frontal lobe and relates to the recall of processed information, including names of people.

42      To Dr Gibbs, Mr Sherwood described a range of mental issues, including tiredness, getting angry and with little memory of things prior to the accident.[17]  Dr Gibbs said Mr Sherwood had suffered a mild to moderate closed head injury with mild residual neuropsychological impairment.  It is somewhat unusual that, having received a history of a very significant memory impairment for events prior to the accident, Dr Gibbs made no reference to that as forming part of his neuropsychological assessment and opinion.  That may be because Dr Gibbs noted[18] the memory loss was Mr Sherwood’s self-reporting, rather than as a result of neuropsychological testing.  Nonetheless, I would have expected Dr Gibbs to have referred to it and explained its relationship, if any, to the head injury. 

[17]DCB 5-6

[18]DCB 11

43      In a second supplementary report of October 2015, Dr Gibbs was provided with the report of Dr Dowling.  Dr Gibbs agreed that the diagnosis of FRA was rare and said “… causation of which is controversial”.[19]  He said, in Mr Sherwood’s case, the diagnosis of FRA would be regarded as controversial.  Dr Gibbs said, essentially, his opinion has not changed despite Dr Dowling’s views.

[19]DCB 19

44      Finally, Dr Dowling conducted various neuropsychological tests and reported.  He also gave evidence.  Dr Dowling was an impressive witness and appeared experienced and competent in his specialty.  He said the following:

“Overall this neuropsychological assessment has shown some persisting acquired cognitive limitations from the moderate traumatic brain injury that Donald sustained on 2/12/2008.  Whilst some improvement is evident in his verbal skills since the assessment in 2013, there is a high degree of consistency in many areas of function between the findings of the current assessment and the findings of the assessments in January 2013 and March 2014.  Currently Donald displays acquired limitations in verbal memory/learning, particularly retrieval difficulties, a reduced efficiency in higher level attentional functions, and limitations in non-verbal executive processes, such as problem solving, organisation and error utilisation.  The limitations in non-verbal executive processes affect his performance on non-verbal tasks, including non-verbal learning.  All of these acquired cognitive limitations are consistent with dysfunction in the frontal lobes, particularly the right frontal lobe.

In considering the persisting cognitive problems that Donald reports, many pertain to aspects of memory function and he makes regular use of a variety of compensatory strategies to reduce the negative impact of his memory problems on his day to day life.  His difficulty in remembering his own intentions constitutes a weakness in prospective memory … .”[20]

[20]PCB 214

45      Dr Dowling diagnosed FRA.  He described it as a rare disorder and in forty years of experience, had only seen four cases, aside from what was reported in the literature.

46      Dr Dowling was cross-examined closely about his finding.  He agreed that to satisfy the diagnosis of FRA, the memory deficit ought to have come on at the time of the accident.  When asked to explain how there appeared to be no reporting to a number of practitioners, including those at The Alfred hospital and, particularly, Dr Ponsford, Dr Dowling said, while at the hospital, there may have been medication administered and Mr Sherwood may have been confused and unable to give a thorough account of his problems, particularly on a background of other physical injuries.  Dr Dowling was unable to say why the memory loss had not been reported to Dr Ponsford, but said that sometimes, in his experience, patients do not report some intellectual deficits unless they are specifically asked a question about them.

Conclusions

47      This is an unusual and somewhat complex case.  The conclusion as to whether Mr Sherwood has suffered a “serious injury” as a result of his closed head injury and consequent intellectual impairment rests, to a significant extent, on whether he has suffered the claimed substantial memory loss, or FRA. All neuropsychological assessors agree he has had a degree of organic brain injury.  This is described as a deficit in cognitive functioning in a higher range of areas, particularly verbal memory and retrieval difficulties, higher level attention, non-verbal processes such as problem-solving and performance in non-verbal tasks and learning.  This assessment leads to a range of issues with concentration, memory and the capacity to understand and plan for work-related issues.  I will set aside those matters for the moment and concentrate on the FRA.

48      The first thing to note is that Mr Sherwood has made a significant recovery from the brain injury.  This is evidenced by his capacity to resume employment and rise further in the construction industry to a project manager earning a much higher wage than he was earning at the time of the accident.  It also appears he is able to cope reasonably well with domestic tasks and social involvement.  He has had significant reduction in his recreational and sporting activities, but this is largely due to physical injuries.

49      It is clear from the reports of The Alfred hospital and the review in the Neuropsychological Outpatient Clinic in January 2009, that there was little, if any, report of major memory dysfunction.  However, in the context of a person having suffered a wide range of significant injuries in the accident, and all the confusion and disruption that goes along with such an accident and injury, it is not surprising Mr Sherwood was not able to immediately detect the nature and extent of his memory loss.  The affidavit evidence of Mr Sherwood’s sister and mother is important.  They clearly identify significant memory deficit right from the time of the hospital.  That continued after he left hospital, was looked after by his sister, and has remained through to the time the affidavits were sworn.  While I did not have the opportunity to hear those witnesses in the witness box, from what one is able to gather from their affidavits, they appear to be honest witnesses, giving a straightforward account of their observations.  Their credibility was not significantly challenged by Mr Lewis.

50      Further, there is the evidence of Mr Sherwood.  I did have the opportunity to observe him in cross-examination.  Mr Sherwood struck me as a truthful and honest witness, giving a fair and measured account of his circumstances.  There were some minor inconsistencies, in particular, in relation to a water-skiing event which took him to a chiropractor, but those matters are insignificant.  There were no real challenges to his credit.  Mr Sherwood’s evidence is clear about the very significant problems he has suffered as a result of a loss of autobiographical memory; that is, the capacity to have personal recollections of things prior to the accident.  It is a most unusual, even bewildering, condition, and Mr Sherwood’s capacity to be able to resume his work as a project manager, in what must be a demanding job, is remarkable.  I accept Mr Sherwood’s evidence that he spent a great deal of time effectively “re-learning” most of the aspects of his job.

51      What is difficult is Mr Sherwood’s apparent failure to report his memory difficulties to Dr Ponsford, whom he saw in October 2009, January 2010 and December 2011.  According to Dr Ponsford’s reports, there is no reference to any substantial memory loss.  There is reference to a range of cognitive functioning deficits.  In October 2009, Mr Sherwood attended with his mother and sister, so one would think they had the opportunity to say something about it. 

52      In fact, Dr Ponsford thought Mr Sherwood was recovering well, was pleased with his progress and, at an early time, recommended a return-to-work and to a resumption of his driving.

53      However, the letter from the general practitioner, Dr Uy Kimpang, dated 2 October 2009 to Dr Ponsford, is most significant.  She described Mr Sherwood as “… confused, has poor short-term memory and long term memory impairment”.[21]  This is a clear statement Mr Sherwood had a problem with long-term memory at the time. 

[21]PCB 53

54      There may be a range of reasons why the reports of Dr Posnford do not record this problem.  Maybe it was mentioned by Mr Sherwood, but not taken up or recorded by Dr Ponsford.  Maybe it was not mentioned at all, because the right questions were not asked.  I accept Mrs Sherwood’s evidence that her son is a person not given to complaint.  I further accept that Mr Sherwood is somewhat embarrassed about the memory deficit and reluctant to discuss it.  The family did not want to raise it with him because it upset him and he did not want to raise it with them as he felt protective of them. 

55      Whatever the reason, I am satisfied that the significant memory deficits of which Mr Sherwood speaks, were evident at the time he saw Dr Ponsford.  That is clear from the general practitioner’s referral letter.  For whatever reason, they were not raised, or if raised, not recorded by Dr Ponsford.  The fact that they were not referred to does not persuade me that they were not present at the time. 

56      Further, in February 2010, while not specifically addressed by the neuropsychologist, Dr Petrov, nonetheless she did obtain a history that Mr Sherwood’s memory was “extremely bad”.   

57      As Mr Lewis said in final submissions, there was no diagnosis of FRA until 2013.  However, this application is not concerned with diagnoses or labels, but rather of consequences.

58      I am satisfied that Mr Sherwood suffered a range of cognitive deficits as a result of a moderate head injury suffered in the accident.  I am further satisfied that the most significant of those deficits was the loss of his pre-accident memory, latterly diagnosed as FRA.  In the scheme of things, that is a very substantial loss for any person, and I accept it has had a very significant effect upon Mr Sherwood’s life.  He has made a remarkable effort to recover from it, but he understandably remains upset and distressed. 

59      While Mr Lewis did not concede the fact, he did not argue that if I was to find Mr Sherwood did suffer the FRA, that it was not a serious injury. 

60      In all the circumstances, it is appropriate to grant leave to bring proceedings in respect of the organic brain injury.  I will make consequent orders.

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