W v G (Traumatic breach of blood brain barrier preceding Multiple Sclerosis)

On the face of it, this was a rear end shunt accident on a busy, rush-hour, East London roundabout. The Claimant, then only 19 years old, asserted typical whiplash injury but within a matter of weeks developed significant symptomatology and was subsequently diagnosed as suffering from Multiple Sclerosis (‘MS’).

The Defendant asserted that the accident occurred as a result of the Claimant jumping a red light and cutting in front of the Defendant.

The parties referred all issues for Independent Evaluation, including the factual issue as to how the accident occurred, and the complex medical causation issues as to whether the Claimant had in fact been subjected to sufficient trauma and/or had suffered concussion or spinal injury sufficient to permeate the ‘Blood Brain Barrier’ and trigger demyelination of the spinal cord and the symptoms of MS.

Ahead of the Evaluation day, IE helped the parties collate their expert neurology evidence. However, the issues could not be resolved without evaluation of which expert and literature upon which they relied, would be preferred at trial. Accordingly, IE’s processes were adapted to enable the attendance of the Neurologists. As a result of discussions with the Neurology experts, it was possible to define the areas of agreement and disagreement and an explanation of the mechanism involved.

The Evaluator, David Pittaway QC, dealt with the complex medical causation issue first before moving onto the factual issue.

It was common ground between the neurology experts that the Claimant would have developed MS in any event, probably at some stage between the age of 20 and 40. The Claimant’s neurologist was firmly of the opinion that the development of MS had been advanced by about 10 years. The Defendant’s neurologist was equally firm that despite the temporal proximity, the development of the MS symptoms was unrelated to the road traffic accident.

The association of the development of MS as a result of trauma has been the subject of debate over many years, and the subject of judicial decision-making in 2000 where the trial judge concluded on the facts of the case that the association had not been established. There are three vital questions: Is it the case that trauma can provoke MS at all? If so, what type of trauma is involved? How severe must that trauma be?

At the Evaluation, the Defendant and their expert accepted that there may be rare and exceptional circumstances where trauma can provoke MS. The Evaluator then proceeded to deal comprehensively with the second and third vital questions, based on all the available evidence and peer-reviewed literature.

The factual issues were dependent on two contrary accounts by the drivers of the two cars as to what occurred at the roundabout, whether the Claimant’s car was stationary or had jumped a red light, the speed/force of impact, etc. There were no other witnesses to the accident; no Police report and no expert accident reconstruction evidence.

The Evaluator explored all the issues both in plenary and private session to ensure that no stone had been left unturned, before delivering the Evaluation.

At trial, the Claimant would have won on some issues and the Defendant would have won on others. In light of the Evaluation, the parties adopted a pragmatic approach throughout the facilitation phase. Within a relatively short time, the parties agreed on a settlement of both damages and costs that both were more than happy with. The Claimant was pleased to have avoided having to give evidence at trial as well as the stress of the wait. Both parties benefitted from the forensic analysis of the medical causation point and the significant costs savings of IE over trial.