‘De-risking’ and financial exclusion
We represent people who have suffered life changing injuries. Common causes are car accidents and negligence in the workplace, but we also have clients who have suffered serious spinal injuries whilst they were simply out shopping.
In most cases the injury is immediately apparent, but sometimes it may seem as though nothing serious has happened. At first it might seem as though there has been no serious injury. For example, the low speed traffic collision that causes a stiff neck, or perhaps a fall which gives rise to some back pain. Often the person involved will think that they have a low value compensation claim, and so they approach a law firm that deals with fast track claims.
However, they soon find that instead of getting better, their symptoms are worsening. Their fast track solicitors might not understand this, and the Defendant insurance company will say that they are making it up. Or perhaps they might point to some pre-existing history of back problems, and say that in reality nothing has changed.
By this stage the victim will have begun to do some research, and realised that they need a solicitor who specialises in serious injury cases. We are often approached at that stage, and it is usually very easy for us to agree an undertaking with the fast track solicitors, which enables us to take over the case – usually on a conditional fee basis.
We then conduct a much more detailed work up on the case, and typically we obtain expert evidence from a spinal or neurosurgeon, and a consultant in neurological rehabilitation. If necessary, we can also arrange for MRI scans to be carried out.
Pre-existing back problems are very common, and contrary to what defendants will argue, this does not get them off the hook. Many of us have back problems, and virtually everyone over the age of 40 will have some degree of degeneration in their spine. Providing that these problems are not preventing us from functioning in our daily life – from working, and living without significant pain, this does not “break the chain of causation” and lead to a reduction in damages.
The correct legal position is that the person responsible for the negligence must “take their victim as they find them”. This might mean, for example, that if someone with a bad back is involved in a low impact collision and is seriously disabled as a result, full damages can still be recovered. All that has to be shown is that a “person of reasonable fortitude” would have also suffered some injury.
The same applies to brain injuries caused by low impact collisions or accidents. The science is complicated, but in broad terms the human skull is obviously very hard, whereas the human brain is not. When an accident happens, and a person’s head is thrown forward, or perhaps hits the ground, the brain moves within the skull, and is subjected to compression and shearing forces. This can give rise to serious brain injury, even though the impact may not have been apparently very great.
Obviously Head injuries can be responsible for a whole host of conditions. At the very severe end of the spectrum there can be permanent and catastrophic loss of physical and cognitive control, resulting in the victim being in a minimally conscious state, and dependent upon others for all aspects of daily care.
At the other end of the spectrum there are subtle brain injuries that might not even be apparent at first. The victim of the head injury might have a headache, and “see stars” for a little while afterwards, but think that nothing more serious has happened. However, their loved ones might begin to notice things like memory loss, irritability, or uncharacteristic impulsive behaviour. These can all be signs of brain injury.
In law there is something called the “egg shell skull principle”. In essence it covers the back injury point described above – where someone has a pre-existing injury or weakness that means a low impact accident causes a much more serious problem. Ironically that is seldom applied to head injury cases, but it would be relevant if, for example, the victim had mild epilepsy before the accident, and it became much more severe afterwards.
We are always happy to talk to people about potential claims, including those who are thinking of transferring their cases from their present solicitors. Our website gives more information about how to do this , here.
Terry is the Head of the Clinical Negligence and Personal Injury Department. He has a national reputation, and is one of the most respected and senior solicitors in the field.
In his medical negligence work he acts exclusively for Claimants. He has always specialised in brain injury cases, particularly children with cerebral palsy as a result of birth injury, but his cases have included many conditions, including meningitis, spinal injury and prostate cancer.
He is also very experienced in dealing with medical inquests, particularly those concerned with suicide, and failings in psychiatric healthcare.
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