Tue, 15 Jul 2014
Written by Satinder Hunjan QC
At any time, as those who have suffered a serious injury to the brain or have been close to someone who has will know, your life can be turned upside down in less than a fated second. The first news of a serious traumatic event is shocking, thoughts often turn to simply holding onto life and then anxiety over the serious permanent disability which may follow; in the mind of those involved it is very much the physical disabilities which are at the forefront.
At any time, as those who have suffered a serious injury to the brain or have been close to someone who has will know, your life can be turned upside down in less than a fated second. The first news of a serious traumatic event is shocking, thoughts often turn to simply holding onto life and then anxiety over the serious permanent disability which may follow; in the mind of those involved it is very much the physical disabilities which are at the forefront.
As recovery, hopefully with excellent rehabilitation in place, takes place, there is often relief that in fact recovery has been made from the physical disabilities and even following a very severe injury to the brain can result in a full or near full physical recovery being made. The perception can then be, sometimes even fuelled by those in professional charge, that a full or near full complete recovery has been made.
These are the “walking wounded”. It is often the case that only upon a return to “normal” life and after a period of time, that there can be the unmasking of serious continuing problems. That unmasking can be even more difficult in cases where there is effectively an informal but effective support structure in place. Such as with a young individual who returns home and back to school and without there being a true appreciation of the same when in fact there can be serious underlying difficulties which are likely to often present lifelong issues.
In these types of cases, it is critical in the proper investigation and presentation of the case, to obtain searching and detailed lay witness evidence of the nature of the difficulties which are being suffered and their implications; the classic type of problems which have serious implications for day-to-day living are those of memory and concentration, multi-tasking, personality change and fatigue. It is crucial to have such witness evidence available and to be able to present it to the medical experts instructed and, in particular, the neuropsychologists or neuropsychiatrists. Even with highly experienced experts, without providing them with the extensive factual information, it is common that the true picture is missed. Indeed, I have been involved in cases where there has been a sea change of a view (on both sides) of the true nature of the difficulties being faced and their future implications upon presenting the witness evidence which has been carefully obtained, and provides a wider picture than is often achievable even with a long interview with an appropriate expert including neuropsychological testing.
An illustrative recent case is that of a young lady whom I shall refer to as S, for reasons of anonymity. S was 17 years old when tragically she was seriously injured when travelling as a passenger in a car. Her injuries included a fracture at the base of the skull and a very severe injury to the brain. That left her, as was proven in due course, with serious cognitive and other impairments that included concentration, memory, fatigue, personality change and behaviour. She also suffered from multiple fractures.
S was an attractive young lady with an effervescent personality. She was of reasonable academic ability and would probably have a managerial type of role, perhaps in retail management. She had an ambition for business but it was likely that any venture would have been modest, such as a fashion shop. She had a passion for handbags and shoes and that remained unaffected by any personality change. She was at college and also worked part time. The initial sequence of events flowed very much in line with the above and eventually it became apparent that there was no real “physical” sequelae of the accident. Without more knowledge, to anyone who had not known the claimant prior to the accident, she remained an attractive young lady with what appeared to be a very sociable personality; she had a boyfriend, had progressed at college and had also had some employment. Therefore appearing that although S obviously had sustained very serious injuries, she had made a remarkable recovery and the claim may be of relatively limited value.
However, as things progressed and upon detailed consideration, it became clear that the picture that S presented, and, indeed, that she wished to present to the world, was very different from reality. S, in fact, had not been able to sustain her college studies or the employment that she had been able to secure. Those who were unaware of her brain injury considered that chain of events to be nothing more than the ordinary vicissitudes of life. After all, S was driving, had a flat, a new partner and was socialising with friends.
In fact, what had happened was that S had become extremely demanding, possessive and suspicious. It was as a result of these changes that eventually it became clear that she was unable to sustain properly either her education or employment; the latter only changed with further rehabilitation, and the help of an experienced brain injury case manager and support worker in place which resulted in her being able to work part time (and flexibly) in a café. More importantly, was the tremendous burden which was placed on those close to her including her friends, but particularly her mother. Despite the fact that S had her own flat, she would make unpredictable demands upon her mother and at unsocial times, including long and distressed calls during the night and would be almost inconsolable during those times. Her actions were not only damaging to her but those around her; she could not tolerate any criticism of her and her mother had therefore adopted a "rose tinted” approach to her when she was in her presence. This had resulted in some of the initial camouflaging of S’s true difficulties.
Fortunately, that had been understood by the time of settlement although not unexpectedly the defendant had sought to maintain the stance that there was overall little in terms of difficulties which required care and support and also sought to maintain the position that S had capacity. None of that was accepted and in terms of a lump sum valuation (depending on the precise view taken upon the level of contributory negligence which remained in dispute), the claim was compromised at around £4.5m. However, it was not settled on a full lump sum basis; there was close consideration of the appropriate financial structure which should be in place with the independent IFA retained on S’s behalf.
The case was compromised on a part lump sum and periodical payments for life basis. There remains an apparent misconception in some circles that where the claimant does not succeed with 100% liability, then provision by way of a periodical payments order is not appropriate; that certainly is not the position and requires close consideration with the expert independent IFA. The claimant in fact achieved periodical payments on a two- stage basis using the same illustrative contributory negligence position as for the lump sum of £100,000 per annum for a period of 5 years and thereafter £78,000 per annum for life. That, in addition to her lump sum, would ensure that she had life-long financial security and for appropriate care and support to be available to her for life, despite the fact that to the world she appeared as someone who was just an attractive young girl who was entirely independent.
