3 Tesla MRI scan refused in brain injury case

In the case of Weeks v Generali Seguros [2025] EWHC 3573 (KB) Mrs Justice Lambert refused an application by the claimant to adduce a further expert report from a neurologist in advance of a May 2025 trial date.

Facts

The claimant, who had been injured in a road traffic collision on 5 June 2016 relied on neurological evidence that concluded he had suffered a traumatic brain injury.  This was based on the claimant’s post-traumatic amnesia and seizure activity. The neurologist recommended a high resolution 3 Tesla MRI scan to further investigate the presence of brain injury.

The claimant served proceedings in September 2017 and in September 2024 directions were given by Master Gidden including a trial date of 19 May 2025.

For some reason no permission was sought for the parties to rely on expert neurological evidence.

The claimant made a late application seeking permission for the neurology experts to serve further reports and prepare joint statements. The application provided no explanation for its timing nor why an application was not made at the directions hearing before Master Gidden.  There was no explanation for the failure to obtain the high-resolution scan recommended by the claimant’s neurologist in 2017 and 2019.

The application was refused because of an unexplained and unacceptable delay of 7 years from when the scan was first recommended. There was a risk, if the application was granted, that the trial date would be under threat.

The defendant had served neuropsychological evidence that suggested any functional effect of brain injury, save for the claimant’s low mood and reluctance to go outside, could be due to other factors. The battery of testing demonstrated no evidence of impairment or reduced ability across most cognitive domains. The judge concluded that the presence or absence of traumatic brain injury was unlikely to be relevant to the quantification of the claim.

Practice points

1. In subtle alleged brain injury cases there may be a dispute as to whether there has been organic damage to the brain. Symptoms often complained of including fatigue and subtle cognitive issues may be explicable by either the presence of a mild organic brain injury or psychological factors, or both.
2. The presence of organic brain injury may not be susceptible to normal CT scanning but can sometimes show up on a high intensity MRI scan.
3. In considering whether to grant permission to rely on neurological evidence including the need for high intensity scanning, the court will exercise its discretion under CPR 35.1. This means that such evidence will only be allowed if it is necessary to deal with the case justly but subject to the duty upon the parties and the court to restrict expert evidence and to deal with cases proportionately.
4. If the presence or absence of microscopic damage to the brain is unlikely to affect the assessment of quantum because the symptoms complained of are minor, the court may exercise discretion not to allow such evidence. If, however, the presence of organic brain injury is likely to affect quantum, the court may be more amenable to granting permission.
5. The court is less likely to grant permission if there is delay in applying, especially if the trial date may be jeopardised.