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.

Keep the Shopping Aisles Clear!

 

Barbara was shopping in Tesco when she caught her foot in nylon banding tape, protruding from one of the store’s wheeled cages from which staff load the shelves.

Barbara fell heavily upon her knees and having been treated by the First Aid officer, made her way home. 

Shops have a legal responsibility to ensure the safety of their visitors and once a visitor suffers an injury in a store due to an obstruction or a slippery substance on the floor,  causing them to fall, the burden on the store is heavy.  Effectively the store must show that the accident was not their fault. Shoppers have to take care of themselves, but shops display their goods in such a way as to attract the attention of shoppers, who are not required to walk the aisles staring at their feet to guard against hazards!

Supermarket chains such as Tesco face thousands of claims each year,  they have liability insurance to face these claims and their lawyers are expert in dealing with them.

Barbara’s case was not one they contested.  They made a “pre-medical” offer of £1750. A pre-medical offer is one made before the defendant insurer has seen a medical report on the claimant’s injuries.  As claimant lawyers, we do not like pre-medical offers because they are usually prejudicial to the accident victim.   It puts the victim under pressure to take the offer (they may face a costs penalty if they do not later beat it) at a time when the long term injury suffered cannot yet be determined.

In Barbara’s case we looked carefully at the GP records and were able to advise that she would not better the offer if it went to court although the insurers were persuaded to increase it to just under £2,000.

The insurers also paid Barbara’s costs in full (this was a case started under the old costs regime).

Rainwater Concealed Pothole on Seven Sisters Road

 

The Law on Potholes

If a highways authority cannot demonstrate that they have a reasonable system of maintenance in place they are likely to be liable for any injury caused to road users who suffer injury due to disrepair.

In our experience,  while all highways authorities these days have a maintenance policy which takes account, for example,  of how heavily used a particular road may be,  they can fall down on implementation of inspections and repairs.

Often local authority will deny liability in a pothole claim and whenever they do so they are duty bound to provide disclosure of their maintenance records.   We always closely analyse such records to identify any failure in the inspection regime that gives rise to a breach of duty.

A recent case

 

 

Over the years Dowse & Co  have run many successful claims for cyclists injured by potholes. 

In May 2012 one of our clients was cycling home along Seven Sisters Road at about 10pm.   There were a number of bricks missing from the surround of a drain cover at the time and this hole was concealed by rainwater.   Our client’s front wheel was trapped in the pothole and she was thrown over the handlebars,  landing on the road.

Following a letter of claim,  on this occasion Transport for London admitted liability no doubt because their maintenance records were poor.

They did not argue that our client had contributed to the accident by not keeping a proper lookout of the road surface in front of her because the pothole was concealed underneath rainwater and it was night time.  

 

Damages

 

Our client recovered £4,500 damages.  

Besides her physical injuries,  she developed travel anxiety relating to cycling for nearly 12 months and lacked the confidence  to return to cycling.

Cycling had been her main form of transport and as a consequence we were able to submit a claim for purchase of a weekly Oyster card for a 12 month period.  That item of loss alone totalled nearly £500.  TfL did not argue about the loss because our client was able to supply a full set of records referring to her Oyster card.

If you have an accident make sure you take some decent photographs shortly afterwards of the pothole as evidence. Sometimes we can also get evidence from witnesses who live on the street who can say how long the road have been in poor condition.  

For further advice contact one of our personal injury lawyers – Patrick Spence or Myles Hickey on 020-7254 6205.

Crocodile Teeth Catch Bike

In August 2012 our client – Peter (not his real name)- decided to take a short cut to work through Richmond Park along a designated cycle route.

Peter entered the Park through Robin Hood Gate at about 8 o’clock in the morning.  It was a bright sunny day.   Until 10 years before the roadway at this point in the park had been open to one way traffic controlled by the use of a metal ramp across the road known as “a crocodile”.   When the access road was closed to vehicles the crocodile barrier was left in situ.

Peter was not familiar with the cycle route and approached a mini roundabout.  He looked up for traffic approaching when his front wheel was caught by the crocodile barrier and he was thrown forward off his bike and on to the road. 

He fractured his collar bone.

Had Peter been aware of the barrier he could have avoided it since it did not stretch the whole width of road.  

Peter instructed Dowse & Co.  We recognised that this would be a difficult case.   The accident happened in broad daylight and the barrier would have been seen by Peter had he been paying more attention to the road in front of him.  Further, it was possible that the Royal Parks would argue that the roadway in law was a right-of-way and that they were not liable for any defects on the right-of-way which might be a risk to people exercising their right. 

On the other hand, in the absence of any contradictory evidence, Peter had the benefit of the Occupiers Liability Act 1957.   Under the Act if you have control of land then you must ensure that the land is reasonably safe for any visitor for the purposes for which they were permitted to be there.   In this case, Peter was riding on a designated cycle route where the warning signs were inadequate and where the barrier posed a foreseeable risk of injury to any cyclist who might collide with it.

Liability was strongly disputed.  However, within some weeks of reporting the accident the Royal Parks dug up the barrier and re-laid the road to make it safe.

The case did not go to trial and settlement was reached.  £3,500 damages was recovered.   Peter had made a quick recovery and suffered no loss of earnings, albeit he had to give up tennis for about 3 months.

While there was no admission of liability, it was clear that the Royal Parks accepted that they were risk of losing at trial, albeit they had a good argument for contributory fault on the part of Peter which would have reduced any compensation by a significant percentage.  The settlement reflected the likely finding of contributory fault.  The case illustrates that the law apportions responsibility and that there is not an all-or-nothing approach to awarding compensation. 

Marilyn – the hazards of High Street shopping

Highway Authorities have a statutory duty to maintain the fabric of public highways (the road and the pavement) to ensure that it is not a danger to traffic, both vehicle and pedestrian. The duty to maintain is not an “absolute” duty to ensure that the highway is free of all defects but to take such care as is reasonably required to ensure that the relevant highway is not dangerous. They must have a documented inspection and repair system in place.

 Contrary to some claims by insurance companies,  Government Ministers and tabloid newspapers,  the world is not full of people waiting to make fraudulent claims for non-existent pavement trips!   Obviously there are some such claims but the hurdles in getting compensation are high and claimants who are found by the court to have brought a fraudulent claim can expect now to go to prison.   

A lot of Councils now have “shared use” pavements for vehicles and pedestrians, whereby cars, vans and lorries can park on the extended pavement to avoid blocking busy streets while making deliveries and collections.   

Marilyn, a woman in her 70’s,  was walking over such an extended pavement which was in poor condition.   The brick pavers had been disturbed by the weight of delivery vans to the Sainsbury’s Local.  Her foot  became caught in a hole between the pavers, she fell and suffered a fracture to her left kneecap.   It required a plaster and she was off her feet for two months and dependent upon being wheeled about by her adult daughter who would visit her daily until she got back on her own feet.

She made a claim to the Council concerned but their insurers found that the defect was not one that should have been picked up on inspection.   This was very surprising and contradicted by the photographs her daughter took of the pavement the next day.  

Inspector wrongly ignored the defect

 

  When we took over conduct of the claim,  the insurers changed tack and claimed that Marilyn was partly at fault for failing to notice the defect (which they had earlier said the Council’s Highways Inspector could not have been expected to notice!).  But they abandoned that position also.

The medical report upon Marilyn identified the need for physiotherapy and suggested that without it,  she might not recover full function in her leg.  Physiotherapy provision on the NHS is woefully inadequate.  Appointments are too far apart and often fixed too far in advance. As part of her claim we included the cost of private physiotherapy and the value of the gratuitous help her daughter had given her when she could not manage on her own.

Negotiations led to settlement of Marilyn’s claim for £12,500.00 with the insurers agreeing to pick up her legal costs on top.

Marco – The “slam-on” that wasn’t

There is a phenomenon called the “the slam-on” perpetrated by fraudsters who brake suddenly, usually in slow-moving traffic, without good cause so that the following vehicle runs into the back of them.   Claims for whiplash and other injuries follow. (The general rule of the road is that the following vehicle is at fault for driving too close to avoid running into the one in front, and many drivers assume there is no defence to the claim. But the general rule can be displaced where there was no proper reason to do an emergency stop)   Fortunately,  these incidents are quite rare. They are rightfully condemned not only as fraudulent,  but dangerous to other road users.       

Insurance companies will sometimes allege a “slam-on” where the circumstances do not justify it.   Once such instance was Marco’s case.

He was on his way to his local Cash & Carry to buy food for his grocery store.  One of his employees sat in the passenger seat.   When Marco pulled up his car in front of a zebra crossing to allow a pedestrian to cross,  he was rear-ended by a much heavier vehicle and pushed forward a considerable distance.   Although Marco’s passenger was relatively unhurt,  Marco suffered muscular and other problems to his back which kept him in hospital for six days.   He was off work six months subsequently,  with restriction of mobility and considerable pain,  particularly in his back.   His sleep was affected,  he suffered low mood and was prescribed anti-depressants.  

The insurers concluded that as this main road is an area known for staged accidents, Marco’s accident was similarly staged and therefore they denied all liability. As importantly,  they denied Marco any help in getting rehabilitation for his injuries.

We told the insurers that if they had evidence that this was a staged accident,  they should disclose it now because it was holding up the proper resolution of Marco’s claim. We  did not want to pursue a fraudulent claim, any more than they wanted to pay out on one. Unfortunately, the pedestrian had disappeared so we could not call on his evidence.  In reality,  they had nothing to disclose.  Their case was built on sand and supposition.

Fortunately,  the insurance company uses an experienced legal firm of defendant lawyers and shortly after the case was referred to their lawyers,  we had a call abandoning the allegation that this was a staged “slam-on” and accepting liability for the accident.

After 6 months or so Marco was back at work but his business had suffered the loss of his labours in the meantime with a dip in profits.   However,  his return to physical health caused his mood to lighten and he got over the depressive episode which had been as troublesome to him as any physical injury.

Medical reports were commissioned but before these were received, the insurers offered a settlement of £40,000 to close the case and were able to provide a sensible breakdown of their calculation.   Marco thought this was a fair offer and he accepted it.   There is of course a problem with “pre-medical” offers.  Until we have a medical report setting out not only the injuries but the prognosis,  we cannot properly advise the claimant what the value of his claim will likely be. But we will have a reasonably good instinctive feel whether the offer is simply not worth considering,  or a proper offer,  given the time the claimant took to recover.  The decision whether to accept a pre-medical offer is the client’s, not ours and in this case we were able to tell Marco that the offer was one he could accept in the knowledge he might not do better in court if he proved all his losses. 

Many claimants will trade off the possibility of a better outcome against an early resolution of their claim.

Under the settlement,  the insurers also agreed to pay Marco’s costs in full.

Robin – Pre-medical settlement

Robin jogged across the main road between stationary vehicles stuck in traffic.  When he got to the centre line of the road, he should have looked both ways.  If he had looked to his right, he would have seen the car driven by the Defendant, who impatiently had pulled out of the stationary traffic, into the oncoming lane so that he could turn right further on.  Robin was knocked down by the car and indeed knocked out momentarily. 



Running between stationary traffic and knocked down

The loss of consciousness in his case wiped out any recollection of the accident.  Head injuries, even if minor, as this one was,  can give rise to amnesia about events leading up to the accident. 

His main injury, however, was a fracture of the lower leg which caused him a fair amount of pain and discomfort, particularly as it was not initially  diagnosed at the hospital. 

Although Robin could only give us a rough indication of where it had taken place, fortunately he came to us within a month after the accident.  As this had occurred on a main road, we were able to approach the council to search their CCTV images.  The accident had indeed been captured on film, showing the vehicle pulling out into the oncoming lane (there was no oncoming traffic) and running into Robin, throwing him up into the air. 

There was no doubt that the car driver was mainly to blame or, as lawyers would say, “primarily liable” for the accident.  Nor was there doubt that Robin would be held partly to blame – “contributorily negligent”.  He had crossed in front of a stationary lorry at a jog without checking whether the road was clear beyond it.  The degree of contributory negligence is always a battleground between claimant and defendant and requires a lawyer’s skill to assess the likely percentage which a Judge would find at trial.  The defendant’s insurer will always look for a high reduction whereas our job as claimant lawyers is to protect the client’s damages as much as possible and to argue for as low a percentage of contributory negligence as is realistic.  In this case, the defendant’s insurer threatened that they would deny liability altogether as their insured was “there to be seen”.  This was unrealistic bluster in our view. 

They coupled this empty threat with an offer of £15,000 in full settlement of his claim.  The offer was made “without prejudice” which means that we could not produce it in court.  It was made just before Christmas and was time limited. 

We will never advise acceptance of an offer without sight of a medical report, unless the circumstances are very straightforward and the victim has recovered fully from their injury.  A claimant who accepts an offer in full settlement does not get a “second bite of the cherry” if their anticipated recovery does not take place or is delayed.  However, the decision is always the client’s, not the lawyer’s.

Robin, who had not suffered any loss of earnings arising from the accident, decided for his own reasons that he wanted to accept.  He had not expected to recover the sum the insurer was willing to pay. 

The insurer also paid our costs in full. 

There are three points worth noting in this story.  The first is that insurance companies may make offers without sight of medical evidence by looking at what they anticipate is the likely overall cost of the claim.  This was a proper offer made by a reputable insurer and there was no question of the claim being fraudulent.  But claimant lawyers don’t like “pre-medical offers” because it often puts the claimant into a difficult position of having to reach a decision on a time limited offer before a prognosis on their injury can be given.  Insurers often complain that claims, particularly for whiplash, are fraudulent but it does not stop them making pre-medical offers to get rid of them!

The second point is that because Robin came to experienced lawyers on time, we were able to preserve the evidence of the accident (councils usually do not keep CCTV images for more than a month).  The images of the accident were distant from the camera, but we were able to get them blown up and have stills made of the exact point of impact.  There is no evidence as compelling as photographic evidence if you can get it. 

The third point is that without expert lawyers, Robin may have been persuaded to accept a much lower figure or a higher proportion of contributory negligence.  Under Coalition Government proposals, the costs of representing someone like Robin and settling his case before proceedings were issued will be cut by about 80%. That will make it impossible to represent such accident victims economically. The government does not want to see injury victims properly represented at the expense of insurance companies.  The claimant’s legal costs are to be cut, but the defendant’s insurers can spend what they like on lawyers to face down a claim.  These proposals will become law in April 2013, unless they are stopped.