Epilepsy following brain injury

                                              R (A Child)  v  Kent CC

 

R, a schoolboy aged 8 years, fell several feet through a gap in fencing from an upper to a lower playground at school, struck his head and was knocked unconscious.  He had significant pain in the head when he came round.   There was no external bleeding.  He had suffered an undisplaced fracture of the parietal bone and some bleeding on the brain,  but this was treated conservatively and did not require surgical intervention.

He had headaches on discharge from hospital,  was kept off school for 3 weeks before returning initially part time and curtailed his hobbies and sports for about 6 months after the accident,  following which he returned to them without difficulty.  He complained of a “squishing” in his head and a high pitched noise in his ear, but these episodes passed,  there were no incidents of neck or back pain,  and no fits or blackouts. He had occasional nose-bleeds for about a year post-accident.  He had made a fairly substantial recovery from the head injury by a month post-accident. 

In medical terms, the undisplaced skull fracture and the bleeding on the brain, were all manageable.   But in the longer term, such injuries can give rise to a risk of epilepsy.   Epilepsy may deprive a person of a driving licence and may therefore close off job avenues in later life. The neurologist we originally instructed had estimated the long term risk of epilepsy at 10% at 5 years post-accident,  13% at 10 years and 15% at 20 and 30 years (all against a background rate of 1% in the general population). In other words, a substantial risk.

Two and a half years after the accident,  R was assessed by a consultant paediatrician,  an EEG was performed which was shown to be normal with no epileptiform features.

Four and a half years after the accident a brain MRI revealed no abnormalities.  Absent any seizures in the time since the accident, the consultant neurologist revised his opinion on the future risk of epilepsy and reassessed this at 2.5%. 

Where there is a real risk of future deterioration, the court can be asked to make a “provisional damages” award so that if the risk comes to pass, the victim can return to court for a “second bite of the cherry”.   But provisional damages awards are therefore always lower than conventional final awards to reflect the loss of finality to the claim for the Defendant. The Defendant’s insurer has to leave their claims book open for the claimant’s lifetime or whatever shorter period is ordered by the court.

In this case, Counsel had advised that we might not get more than £9,000 provisional damages.  The problem is that if there is no further deterioration attributable to the original accident, there is no “second bite of the cherry”. So R might be left with £9,000 in total. As it was, after negotiations the defendant insurer was willing to offer £24,000 in full settlement of a final award and this appealed both to our young client and to his Litigation Friend.  The court approved the settlement (no settlement can be made for a person under 18 or a vulnerable adult without court approval).

The insurance company paid our costs in full also.  This was a case which started off before 1.4.2013,  in fact R was 14 by the date of Court approval.  If the accident had happened after 1.4.2013, when the Government brought in new rules,  R would stand to lose a significant chunk of his compensation in legal fees if his case were now conducted on a no win no fee basis. Insurers are very happy with the government. Accident victims have fared very badly.