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News | Tue 18th Jan, 2022
On 10th January 2022 the trial in the case of Hart v Marshalls commenced before HHJ Freedman (Sitting as a Deputy High Court Judge). The case concerned a road traffic accident which occurred on 21st August 2018 in which the Claimant sustained fairly minor physical injuries. He was prescribed a non steroidal anti inflammatory drug called Naproxen for his on-going back pain. On 17th September 2018 the Claimant attended hospital with breathing difficulties, a temperature and productive cough. He was initially treated with antibiotics for community acquired pneumonia. Unfortunately, he did not respond and got progressively worse until he required ventilation and was placed in an induced coma. Whilst he eventually recovered to the extent that he was discharged from hospital, the Claimant was left with severe lung injuries meaning he was reliant on bottled oxygen and had a significantly shortened life expectancy. It was the Claimant’s case that he had in fact suffered from Naproxen induced pneumonitis rather than pneumonia and hence his lung injury was caused by the RTA. As a result a claim totalling £1.9m was made including substantial future care, loss of earnings and accommodation to allow the Claimant to move to single story accommodation.
Liability for the RTA was admitted but causation of the lung injury was denied. The Defendant, relying on evidence from Dr Moore-Gillon, argued that Naproxen induced pneumonitis was a “vanishingly rare” condition (less than 1 in 1 million with only 7 reported cases worldwide) and that the Claimant had actually suffered community acquired pneumonia which had led to Acute Respiratory Distress Syndrome. There was simply no connection to the RTA.
In addition, the Defendant, which had obtained 12 days worth of surveillance evidence on the Claimant, alleged that he was fundamentally dishonest. Surveillance evidence of the Claimant showed him acting as a volunteer at is local cricket club where he was videoed moving beer kegs out of the cellar. This involved carrying kegs up a steep flight of stairs. This material was particularly concerning because of the Claimant’s allegation that he struggled on stairs and required single story accommodation.
In order to try and mitigate the effect of the surveillance, the Claimant recreated the footage in his own video but performed the tasks with an oxygen monitor. This revealed that whilst he was able to perform the tasks, his oxygen saturations fell from the mid 90s to 80%.
The trial Judge heard evidence from the Claimant on day one of the trial and then from both respiratory experts on day 2. In cross examination Giles was able to demonstrate that Mr Moore-Gillon was unable to explain the spikes in the Claimant’s eosinophil count (an indicator of allergic reaction). He was further able to demonstrate that Dr Moore-Gillon had given and then retracted new theories whilst being challenged in cross examination. Indeed by the end of questioning Dr Moore-Gillon had accepted that there was an allergic reaction to naproxen but just not one that had led to lung disease.
At the end of day 2 the Judge asked if the parties would like to hear his “preliminary impressions”. He made it clear that these were not a Judgment and that he had not yet heard from the quantification experts where all of the Defendant’s experts felt there were reasons to question the Claimant’s honesty. The Parties agreed that the indications would be helpful
In a detailed set of “indications” the Judge said that he found no evidence of dishonesty, let alone fundamental dishonesty. Whilst the Claimant could be criticised for not mentioning the physical work he did at the club, the counter surveillance video revealed the physiological effect on the Claimant of undertaking such work. In relation to the causation question, he found that he preferred the Claimant expert’s view (Professor Knox). He then invited the parties to try and settle the claim.
As a result the parties convened a JSM on what would have ben day 3 of the trial where damages were agreed in the sum of £1.35 million.