Mind over matter? Brain injury and the consequences of expert speculation

What are the consequences when an expert introduces a new theory during cross-examination? Charlotte Buck, pupil barrister, analyses practice points for complex brain injury cases arising out of Hemingway -v- Robena Contract Furnishings Ltd [2025].

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Introduction

Determining the cause of post-brain injury symptoms (changes in mood, concentration, or behaviours including executive dysfunction) is complex, especially when scans do not necessarily reveal the full picture. Dysexecutive symptoms include difficulties with planning, decision-making, or impulse control and may characterise some ADHD presentations.

The stakes are particularly high when causation has an impact on damages to be awarded, as in Hemingway -v- Robena Contract Furnishings Ltd, where the Court had to decide whether the ongoing symptoms were primarily organic or psychological.

This blog will focus on the medical evidence presented in the case and the judicial commentary surrounding experts introducing speculative theories during oral evidence.

Recorder Clayton, presiding over the quantum trial of this matter in Sheffield County Court, concluded in his judgment of 7 October 2025 that the Claimant’s case as to the symptoms ‘did set a “hare running”, … but in the end, it turned out to be a non-point.’ (§160(6)).

Background

On 28 March 2018, Mr Hemingway was at work for the Defendant unloading metal light fittings when one fell striking him on the head.

As a result, he sustained a right temporal depressed skull fracture with bone fragments embedded in the temporal area requiring initial surgery followed by a cranioplasty the following January. Liability was not in issue as this had been determined at an earlier hearing.

Issues

The key quantum issues were as follows:

1. Whether the ongoing symptoms were primarily organic or psychological;
2. Whether the Claimant lacked capacity to manage finances, justifying Court of Protection costs;
3. Whether future losses, including earnings, care, and speculative heads of loss such as marital breakdown were recoverable.

Issue 1: Organic or psychological cause?

The four experts who gave evidence were:

1. Dr Santullo – Physical & Rehabilitation Medicine (Claimant)
2. Dr Hardie – Neurologist (Defendant)
3. Ms Woods – Psychologist (Claimant)
4. Professor Kemp – Neuropsychologist (Defendant)

All experts agreed that there was some organic brain damage with cognitive and psychological consequences. The main issue, as Recorder Clayton put it, was a matter of ‘primacy and degree.’ (§70)

Dr Santullo’s opinion was that the symptoms were a result of damage to the surrounding areas of the brain following the index injury. Dr Hardie, on the other hand, disagreed and believed that the CT scans simply showed a penetrative injury causing focal injury to the right temporal lobe alone. Dr Santullo eventually conceded that the blood which she had interpreted as evidence of broader damage originated from the fracture site, not a frontal lobe haemorrhage.

Ms Woods, the Claimant psychologist, then took the stand.

During cross-examination, she said that if the Court accepted Dr Hardie’s evidence that there was only right temporal lobe damage and no other damage, she would attribute the Claimant’s ongoing symptoms to “disrupted connections”. She proposed that the original damage to the right temporal lobe could cause dysexecutive symptoms because of disrupted connections in the brain.

As a result of this new theory (not mentioned in Ms Woods’ report but introduced for the first time at trial) both counsel agreed it was important to recall Dr Santullo and Dr Hardie to comment on this point.

The trial was rescheduled for 23 May 2025 with two additional medical reports and the new question being:

Whether the Claimant’s dysexecutive symptoms could have been caused by disruption to the connections to the frontal lobes caused by the injury to the right temporal lobe?

Dr Santullo concluded that, considering the location of the haemorrhage in the right temporal lobe, it likely affected the fronto-temporal parietal network, including the insular pathway which could lead to dysexecutive symptoms. The fronto-parietal network regulates the moment-to-moment decisions involved in planning and execution of goals.

Dr Hardie accepted that the brain is interconnected and that the Claimant possibly sustained some limited microscopic damage, but disagreed that it could cause executive dysfunction, citing a lack of supporting academic literature for such a theory.

In response, Dr Santullo presented a 2007 paper by Polish psychologists on brain injury and executive dysfunction, which she found via Google. The paper was not included in the literature bundle, and it was later determined that it involved non-penetrative injuries, raising questions about its relevance.

After considering all the evidence, Recorder Clayton concluded that he preferred the Defendant’s medical evidence. He accepted Dr Hardie’s opinion that the CT scans showed no damage beyond the right frontal lobe and, therefore, the injury was a moderate-severe traumatic brain injury with a penetrating injury to the right temporal lobe. There was no evidence of damage to other areas of the brain as suggested by the Claimant’s experts.

In reaching this decision, Recorder Clayton expressed concerns about Dr Santullo’s role, noting that she was not a neurologist and had been tasked with too many issues to comment on.

Dr Hardie, on the other hand, came across as ‘experienced and authoritative’ with his evidence being ‘clear, reasoned and balanced.’ (§89) Recorder Clayton then went on to ‘unhesitatingly reject’ Ms Woods’ theory that dysexecutive symptoms could stem from disrupted connections to the frontal lobe, despite no direct damage (§160). In doing so, he criticised the late emergence of this point, the lack of support in medico-legal literature, and the absence of clear neurological evidence to support the assertion. Ultimately, he deemed it as speculative and unsupported by reliable evidence. A point that ‘set a “hare running”, but in the end, it turned out to be a non-point.’ (§160(6)) A point that briefly stirred debate but, on the whole, lacked substance.

Issue 2: Court of Protection costs

The Claimant sought costs for future Court of Protection services on the basis that he lacked the capacity to manage a damages award. Recorder Clayton criticised insufficient material provided to the experts on this issue. They had a non-CPR-compliant report from an independent assessor whose assessment was questionable. This ‘was not an ideal way to deal with such an important issue.’ (§165(3))

Recorder Clayton ultimately found that it had not been established that the Claimant lacked capacity to deal with a damages award, stressing the importance of autonomy and the need for caution before removing an individual’s financial independence. A final point of interest under this heading is that Recorder Clayton noted the Claimant’s loving family and support, noting that the experts had not considered the significance of this and how decisions were likely to be made within the family.

Issue 3: Future losses

The Claimant sought over £2.4 million but was awarded £723,916. No damages were awarded for Court of Protection costs, care, or marriage breakdown. Recorder Clayton viewed the risk of marital breakdown to be minimal and rejected related claims, noting they were speculative. However, he did approve up to 24 sessions of couple’s counselling. Whilst no Court of Protection damages were awarded, Recorder Clayton took a balanced approach and made an award for professional support for the Claimant handling his affairs.

Comment

At least four lessons for practitioners arise from this judgment:

1. Expert quality matters: Courts favour well-reasoned, cautious opinions over speculative theories. Use specialists aligned with the core issues, in this case neurologists. CPR Part 35 requires experts to provide objective, independent opinions within their area of expertise. The Court’s criticism of speculative theories in this case reflects the importance of adhering to these duties.
2. Court of Protection costs: Claims for Court of Protection services require strong, specific evidence that is CPR-compliant confirming that an individual lacks capacity. It is also important to consider alternatives to Court of Protection services, such as familial or other professional support.
3. Avoid speculative damages: Claims for risk of marriage breakdown and other speculative heads of loss unsupported by evidence should not be used to artificially inflate the value of a claim.
4. Prioritise rehabilitation: Early and consistent rehabilitation supports recovery and reduces long-term costs.

When it comes to complex brain injury, expert evidence can make or break a case. In this case, the Court’s preference for clear, reasonable opinion over speculative theories highlights the importance of experts not straying beyond their remit or introducing unsupported ideas which risk undermining the claim. The late introduction of an unsupported theory led to a two-month trial delay, which also raises concerns about the Overriding Objective. Expert evidence must be properly prepared, and theories disclosed in advance to avoid unnecessary disruption.

Charlotte Buck, Pupil Barrister

• The Defendant was represented by Nigel Lewers of 12KBW, instructed by Clyde & Co LLP, Solicitors.