Success for Niall Maclean in trial involving suggested link between traumatic brain injury and dementia

The possible links between traumatic brain injury (TBI) and dementia are of increasing interest to academics, clinicians and lawyers. In the case of The Executors of the Estate of the late Geoffrey Charles Ivory v Swale Borough Council the court had to grapple with the issues in the context of a man who actually developed dementia in the years following an accident in which he sustained a TBI. This is believed to be the first case to do so. The court concluded there was no causal link between the brain injury and dementia.

Niall Maclean of 12KBW represented the successful Defendant throughout proceedings and at trial. An extensive judgment spanning almost 400 paragraphs was handed down by His Honour Judge Parker on 4 April 2023 (see full judgment here).

Background

Mr Ivory tripped in the Defendant’s car park in May 2014. He was then aged 82 years, although said to be extremely active and involved in his local community. He sustained nasty head and facial injuries and was taken to hospital by ambulance. In the weeks following the accident he developed weakness, confusion and speech problems due to a subdural haematoma (SDH), i.e. bleeding near the surface of his brain. This was caused by the accident. He also suffered a number of seizures, again caused by the accident.

Mr Ivory also developed dementia, which became increasingly severe in the years following the accident. When he died in 2020 he was very severely debilitated by dementia, albeit this was not the cause of his death. Mr Ivory’s executors, the Claimants, brought a substantial claim for inter alia care home fees on the basis that the accident and TBI caused his dementia.

Liability was admitted. The claim proceeded to trial on the issues of causation and quantum.

The trial

At trial the court heard oral expert evidence in the fields of neurology (Dr Steven Allder for the Claimant and Dr Pamela Crawford for the Defendant) and psychiatry (Professor Tony Elliott for the Claimant and Dr Hugh Series for the Defendant). The court also considered jointly instructed expert evidence in the fields of neuroradiology (Dr Paul Butler) and cardiology (Professor Saul Myerson), and heard lay testimony from several witnesses on behalf of the Claimants regarding Mr Ivory’s functioning before and after the accident.

HHJ Parker found that Mr Ivory sustained a TBI as a result of the accident, albeit he accepted the Defendant’s case that any such injury would only just qualify for the “mild” category on most rating scales.

Dr Allder on behalf of the Claimants outlined three mechanisms by which the accident and TBI could have caused Mr Ivory’s dementia. First, the presence of blood from the SDH on the outer surface of the brain might have triggered a “neurotoxic cascade”. Second, the brain injury could trigger a chronic inflammatory response. Third, the brain injury could cause an interaction between two proteins found in the brain (amyloid and tau) leading to the neuropathology that underlies Alzheimer’s disease. Dr Allder also opined that the rate at which Mr Ivory’s dementia progressed was unusually fast, and this too was due to the brain injury.

The court was addressed in detail on a considerable volume of published scientific research on the relationship between brain injury and dementia, some of which was considered in Mathieu v Hinds [2022] EWHC 924. HHJ Parker also had to consider scientific research on the relationship between SDH, seizures, epilepsy and dementia, in addition to research about the rate at which dementia progresses.

Dr Allder accepted in cross-examination that all of the scientific literature discussed dealt with the association between TBI and dementia, and not causation. HHJ Parker accepted there were other problems with the literature, and concluded that “the current state of research does not establish that either a single mild TBI or a chronic subdural haematoma is likely to cause or accelerate dementia. The additional feature relied upon by the Claimants – post-traumatic epilepsy – has not been established on a balance of probabilities to be associated with, still less causative of, dementia”.

Of the two neurologists, HHJ Parker held that Dr Crawford was clearer and more consistent than Dr Allder. HHJ Parker held that “there were shifts in Dr Allder’s opinions for reasons that were not always wholly clear”, and he rejected Dr Allder’s view that there was a step-change deterioration in Mr Ivory’s cognitive functioning after the accident. Further, HHJ Parker rejected Dr Allder’s view that the seizures Mr Ivory suffered after the accident were sufficient to justify a diagnosis of post-traumatic epilepsy.

Both Dr Allder and Professor Elliott accepted in cross-examination that they had not dealt in their evidence with entries in Mr Ivory’s medical records indicating problems with his memory before the accident. HHJ Parker found as a fact that Mr Ivory was suffering memory deterioration from about 18 months before the accident. HHJ Parker accepted the Defendant’s case that Mr Ivory in fact had a degenerative dementia which was neither caused nor accelerated by the accident, the TBI, the SDH or the seizures.

The Claimants were awarded less than 10% of the pleaded value of their claim, and failed to beat a Part 36 offer made by the Defendant in early 2018.

Niall Maclean of 12KBW represented the Defendant and its insurer throughout proceedings and at trial, instructed by Patricia Williams of Weightmans LLP. Further enquiries can be directed to Niall’s clerk, Tristan Whigham: whigham@12kbw.co.uk.