By Alice Hall, serious injury solicitor at Irwin Mitchell.
Neurocognitive deficits caused by traumatic brain injury (TBI) can be one of the more challenging injuries to prove and as a Claimant solicitor; it is my client who bears the burden of proving every aspect of their injuries and resultant losses.
I have seen that it is often the case that mild TBIs are just one of many injuries, whilst other injuries may present as far more life-threatening, particularly during the emergency stage of treatment.
Sometimes, therefore, mild TBIs are either not fully diagnosed at the outset, or they are noted but are not treated as a priority in comparison with other more seriously recognised injuries at the time, which may be more obvious and more pressing.
Claimants are often then discharged from hospital with their physical injuries having been treated and follow up arranged for Occupational Therapy input and Physiotherapy, but with no neurological or neuropsychological investigation or follow-up.
This is then often further complicated by the subtle ways a mild TBI can manifest itself. For example, they may cause issues such as dizziness, fatigue, tinnitus, loss of smell or taste, difficulty concentrating, multi-tasking or changes in mood or personality.
Sometimes, these issues are picked up only by family members or friends; with the symptoms being so subtle that they go unnoticed by the injured party themselves, particularly when they are focused on recovery from their more obvious physical injuries.
I have had Claimants approach me following a serious injury and it is only at that point through my discussions with them that the possibility of a TBI is first explored, and that can be something which can be quite shocking and upsetting for an injured person to first consider.
In proving such an injury, expert evidence, particularly neurological and neuropsychological, will obviously be key.
The difficulty is often that, in the absence of objective evidence of a TBI shown for example by way of day-of-injury imaging, expert evidence must be unequivocal in determining the presence of any TBI or otherwise, which of course is not always possible for a variety of reasons.
However, in recent years, there have been reports regarding seemingly exciting new technologies that have been developed with the aim of gathering objective evidence regarding the presence of TBI.
For example, there has been research into the use of ‘Diffusion Tensor Magnetic Resonance Imaging (DR-MRI)’ – which evaluates water movement within the brain to locate brain cells that are not functioning properly – which has been shown to provide objective evidence of TBI.
There have been other developments for example, specific blood tests which may measure plasma-based metabolomic biomarkers, which have been shown to indicate elevations in metabolites in individuals who have suffered TBI when compared to non-injured control participants.
Matters can be further complicated in litigation if, once expert evidence is obtained, the waters become muddied with suggestions of there being overlying psychological components to what is suspected as being a TBI, or potentially experts being of the opinion that the symptoms complained of are entirely psychologically based.
Of course, when Claimants have been through trauma, it is not uncommon that they will present with some sort of psychological injury in addition to their other injuries.
The difference – whether the presenting symptoms are caused by TBI or some psychological component – is essential in many respects. First and foremost, the treatment that the Claimant will be recommended to address any neurocognitive deficits that they present with, must be recommended in line with its underlying cause.
Failing this, a Claimant risks undergoing potentially lengthy, costly and challenging rehabilitation which may turn out to be wholly inappropriate to their condition.
Secondly, the quantification of damages is also influenced heavily by the nature of the injury, both in terms of the PSLA (pain, suffering and loss of amenity) element of the claim, which refers to the sum of compensation that a Claimant is awarded to compensate them for having suffered the injury itself.
This element of any award is guided by a set of guidelines which include brackets of awards for every injury and, within that, a range of severity.
Whether such neurocognitive deficits are presenting as a result of TBI, or psychological injury, or a combination of both, will determine which section of those guidelines, and which bracket, a Claimant will be assessed under, hence influencing the ultimate award that they receive.
Further, thought must also be given in any personal injury claim regarding what other losses a Claimant has, or will, suffer as a result of their injuries e.g. loss of earnings, care, case management, rehabilitation, aids, equipment.
Again, the nature of the injury will permeate all other aspects of the quantification of the claim, particularly if, depending on the nature of the injury, the experts consider that the prognosis is significantly different in either scenario.
The danger in this situation would be that a Claimant would be at risk of either being significantly under or over compensated, which would of course be entirely inappropriate.
Whether such deficits are caused by TBI or psychological elements will potentially have a significant impact on a Claimant’s long-term prognosis, and therefore the compensation to ensure that they are adequately compensated to reflect whatever their future needs look like.
For example, it is widely accepted that there is an increased risk of various serious long-term medical conditions, including epilepsy and dementia, in people who have suffered TBI.
One recent study concluded that there was more than a two-fold increase in the risk of dementia in those with TBI, even in those who did not suffer any documented loss of consciousness at the point of injury.
Of course, the costs involved if either of these conditions materialise are potentially huge. This is often addressed in litigation by way of provisional damages. Provisional damages allow greater security for Claimants if there is a chance in the future that may develop some disease or serious deterioration in their condition.
This provides the Claimant with an option to return to the Court to seek a further sum of compensation if they do indeed deteriorate significantly after the original claim has been settled.
This is in contrast to the normal course whereby a personal injury claim is settled in “full and final” terms, meaning that there would be no scope to re-open a case and pursue additional compensation should the injured person’s injuries or condition significantly deteriorate beyond what had originally been envisaged.
Proposed changes to our armed forces’ ability to secure justice
In personal injury claims, there is a three year time limit (in the vast majority, but not all, cases) to start a claim, writes Irwin Mitchell’s David Withers.
If an injured person fails to start Court Proceedings within the three year period and there are no exceptions that apply, they run the risk of the Court finding that their claim has become “statute barred”.
In other words, the Defendant would have a complete defence, even if the breach of duty (fault) had been obvious.
Under the Limitation Act 1980, the Courts have the discretion to allow cases to proceed even if they are brought out of time.
This discretion is often used when injured people have not been able to issue Court Proceedings for a number of very valid reasons.
So, cases can proceed, even if they have been brought out of time, the Government is intending to change the law for our armed forces.
The Overseas Operations (Service Personnel and Veterans) Bill would apply a finite deadline of six years for claims for death or injury of a member of the armed forces.
There would be no ability to extend this arbitrary period of time, regardless of how exceptional the circumstances were.
This would place the Ministry of Defence in a much more advantageous position than any other Defendant in the country.
Part 1 of Schedule 2 states:“The court shall not under this section dis-apply any provision of section 11 in its application to an overseas armed forces action if the action was brought after the expiration of the period of six years from the section 11 relevant date”.
There are a plethora of examples when the Ministry of Defence’s negligence may result in significant psychiatric injury to armed forces personnel meaning that there may be an understandable delay in individual exercising their civil rights.
The Government has indicated that the Overseas Operations (Service Personnel and Veterans) Bill will be “providing greater legal protections to armed forces personnel and veterans serving on military operations overseas”; it is difficult to see how this is true.
As the proposed law stands to be, members of the Armed Forces and the Security Services, on the same operation, would have two different outcomes having been victims of the same negligent conduct.
David Withers is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma.
Bereavement damages – an overview
The thorny issue of bereavement damages in fatal accident cases has recently raised its head again on one of my cases, writes associate solicitor Lauren Haas. Since so few of the families I encounter are aware of bereavement damages it may be useful to summarise the current law in this area and set out what the potential issues are.
What are bereavement damages?
Bereavement damages are a fixed sum of money which can be claimed on the unlawful death of a loved one.
They are separate from any financial dependency claim, which can of course also be brought.
Unlike a lot of other jurisdictions in Europe and the world, within the English jurisdiction we are very restrictive in our approach to bereavement damages.
Who can claim?
The current legal position allows you to claim the bereavement award if you are:
- The spouse or civil partner of the deceased; or if no such eligible claimants exist, then
- In cases involving the death of a child under 18, the parents if the child was “legitimate”, or the mother if the child was “illegitimate” ie mother and father were not married.
The question of who can actually claim this award has caused some controversy and outrage in recent years.
In 2017, a case in the Court of Appeal (Smith v Lancashire Teaching Hospitals NHS Foundation Trust) resulted in the Court of Appeal dragging the rather outmoded position on eligible claimants into a 21st century setting by ruling that cohabitants who have lived together for two years or more (for at least two years immediately prior to death) can claim for bereavement damages.
However – beware! As is the case for parents, where both an eligible cohabitant and spouse are eligible to claim bereavement damages then the award is divided equally between them.
Who cannot claim for bereavement damages?
Despite the fact that some cohabitants are now entitled to bereavement damages, the list of people entitled to a bereavement award remains very restricted.
The following individuals are not entitled to a bereavement award:
- Cohabitants of less than 2 years
- Parents of an adult child who is over the age of 18
- The unmarried father of a child under the age of 18
- Children who have lost a parent (regardless of the child’s age)
How much can be claimed for bereavement damages?
Following a consultation by the Government in reaction to the Smith v Lancashire case mentioned above, the award for bereavement in fatal accident claims was increased from £12,980 to £15,120 in March 2020 (after seven years of no increase at all).
The new award level applies to deaths on or after 1 May 2020.
However, the Ministry of Justice’s reiterated view is that bereavement damages are token in nature and have intentionally been limited in scope to a very restricted pool of individuals.
“What price is a loved one’s life?” is probably one of the most emotive issues lawyers deal with in fatal accident cases.
The answer is of course that no money can ever compensate for the death of a beloved family member, but it adds to the hurt of families already dealing with a loved one’s death to find out what level of bereavement damages are actually set at and how restrictive in scope they are.
As a serious injury lawyer, it has been my experience that this restrictive approach can cause real heartache and anger at a time when families are in an exceptionally emotive state of mind anyway.
Careful and early management of the expectations of the families involved in fatal accident cases in respect of bereavement damages is therefore key.
A multitude of legal commentators have sought to emphasise the inequality and unfairness of the current legal position.
The Association of Personal Injury Lawyers (APIL) carried out consumer research in 2013, in which more than half of the 2,000 people surveyed thought bereavement damages should be more than £100,000, while three-quarters of people wanted the levels set on a case-by-case basis.
In addition, the current legal position does not reflect modern society’s view of and the proliferation of so-called “illegitimate” children ie children not born to a married couple.
It is a fact of life that (depending on the studies one consults) around 30-50% of babies are born out of wedlock.
That means a lot of fathers will fall outside of the scope of bereavement damage.
Children are prevented from claiming bereavement damages for parents in any case, which has caused many an expression of outrage when explaining the law to families.
As a comparison, in Spain or Greece you would likely be able to claim damages of around €80,000-100,000 for a bereavement which is caused by an unlawful act.
In Scotland, every case is looked at on its own merits and this has resulted in awards solely for bereavement damages reaching up to £140,000.
Unfortunately, a policy change by the Government is highly unlikely at the present time.
Lauren Haas is an associate solicitor specialising in serious injury and fatality cases at Irwin Mitchell.
Driverless vehicles and injury
The Government has recently indicated that they are intending to consult on changing the law in the near future so as to allow level three automated vehicles on the road, writes David Withers of Irwin Mitchell.
There are six levels of automation:
Level 0: The driver performs all of the tasks associated with driving the vehicle;
Level 1: Some driving features are included but the driver controls the vehicle;
Level 2: The vehicle has automated functions but the driver must monitor the environment and be ready to take control at all times;
Level 3: The driver is a necessity but does not need to monitor the environment at all times;
Level 4: The vehicle can perform all driving functions under certain conditions;
Level 5: The vehicle can perform all driving functions under all conditions.
The proposed consultation is likely to see level 3 vehicles being allowed on the UK roads, in addition to levels 0, 1 and 2 vehicles.
The call for evidence will look at the Automated Lane Keeping System (“ALKS”) – an automated system that can take over control of the vehicle at low speeds, keeping it in lane on motorways.
Drivers may be able to “delegate” the task of driving the vehicle. ALKS can keep a vehicle within its lane and control its movement for extended periods of time.
However, at all times, the driver must be able and ready to resume control when promoted by the vehicle or in an emergency situation.
Transport Minister Rachel Maclean said: “Automated technology could make driving safer, smoother and easier for motorists and the UK should be the first country to see these benefits, attracting manufacturers to develop and test new technologies.
“The UK’s work in this area is world leading and the results from this call for evidence could be a significant step forward for this exciting technology. Following the approval of ALKS Regulation in June 2020 by the United Nations Economic Commission for Europe (UNECE) – of which the UK is a member – the technology is likely to be available in cars entering the UK market from Spring 2021.
“The government is acting now to ensure that regulation is ready where necessary for its introduction”.
The Government’s call for evidence will ask whether vehicles using this technology should be legally defined as an automated vehicle, which would mean the technology provider would be responsible for the safety of the vehicle when the system is engaged, rather than the driver.
Under the Consumer Protection Act 1987, a manufacturer is strictly liable for any damage caused “wholly or partly” by a defect in a product.
In addition, the manufacturer may be liable for a breach of contract and / or negligence, albeit the breach would have to be proven, as a breach of contract and negligence do not (in usual circumstances) attract strict liability.
Under the Automated and Electric Vehicles Act 2018, if damage is caused by an automated vehicle when driving itself, the insurer would be liable for the damage.
There is currently uncertainty due to a gap in the legislation whether an insurer or a manufacturer would be liable in circumstances when damage is caused partially by an automated system and partially due to driver error.
It may be the case that both the manufacturer and the driver could be held liable.
Personally, I think it is fantastic that the UK is keen to lead the way with automated vehicles. However, any further automation of vehicles must be carefully considered.
Automation can lead to complacency amongst drivers. If Level 3 automated vehicles are allowed on the roads, the driver does not need to monitor the environment at all times. The Government has suggested that level 3 vehicles may be allowed on motorways and other roads subjected to a 70 miles per hour speed limit.
Although there will of course be extensive testing, we know that products including those designed to automate the driving experience can and do fail.
I would urge the Government to ensure that we adopt an incremental approach to any automation of driving vehicles so as to discourage complacency and increase the risks that we face when driving on the roads.
In addition, I think provision should be made to ensure that the legal framework insofar as insurance and responsibility is clear.
David is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma.
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