At any time, as those who have suffered a serious injury to the brain or have been close to someone will know, your life can be turned upside down in less than a second. The first news of a serious event is shocking, thoughts often turn to simply holding onto life and anxiety over the serious ongoing disability which may follow; in the mind of those involved it is very much the physical disabilities which are most important. As recovery, takes place, there is often relief that 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 sense can then be, sometimes encouraged by doctors and other professionals, that a full or near full complete recovery has been made.
These people are the “walking wounded”. It is often the case that only upon a return to “normal” life and after a period of time, that serious continuing problems come to light. These problems can be even more difficult in cases where there is an informal but effective support structure in place. Such as with a young person who returns home and back to school without there being a true understanding of the brain injury when in fact there can be serious “invisible” difficulties which are likely to often present lifelong issues.
In these types of cases, it is important in the proper investigation and presentation of the case, to obtain searching and detailed witness evidence of the nature of the problems which are being suffered and their impact; the usual type of problems which have serious implications for day to day living are those of memory and concentration, multi-tasking, personality change and tiredness. It is important to have this witness evidence available and to be able to present it to the medical experts instructed and, in particular, the neuropsychologists or neuropsychiatrists witnesses from family, friends or work are often best. Even with highly experienced experts, without providing them with the extensive factual information, it is common that the true picture and problems the injured person has are missed; indeed, I have been involved in cases where there has been a complete change of mind (on both sides) of the true nature of the problems being faced and their future impact upon presenting the witness evidence from friends and family etc, which has been carefully obtained as this often provides a wider and more detailed picture than is often achievable even with a long interview with a medical expert including even neuropsychological testing.
For example a recent case is that of a young lady whom I shall refer to as S, for reasons of privacy. S was 17 years old when tragically she was seriously injured when travelling as a passenger in a motor 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 which included those of concentration, memory, tiredness, personality change and behaviour. She also suffered from multiple fractures.
S was an attractive young lady with an bubbly personality. She was reasonably academic and would probably have a managerial type of job; perhaps in retail management. She had an ambition for business but it was likely that any business she started would have been modest, such as a fashion shop. She had a passion for handbags and shoes and that passion 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” effects of the accident. To those who did not know S prior to the accident she was an attractive young lady with what appeared to be a very sociable personality, had a boyfriend, was doing well at college and had also had some employment, to them and those not experienced in dealing with people with brain injuries it appeared that although S obviously had sustained very serious injuries, she had made a fantastic recovery and the claim may be of relatively limited value.
However, as things progressed and when looked at in greater detail and upon detailed consideration, it became clear that the picture that S painted, and, indeed, the fact she presented to the world, was very different from reality.
S, in fact, had not been able to carry on with her college studies or the job that she had been able to secure. Those who were unaware of her brain injury considered that chain of events was just due to the ordinary challenges of life. After all, S was driving, had a flat, a new partner and was out and about with friends.
In fact, what had happened was that S had become extremely demanding, possessive and suspicious. It was as a result of her changes that finally it became clear that she was unable to continue properly with her education or work; the work situation 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 huge 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 upsetting 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 to be careful what she said and had to try to be positive of her when she was in her presence. This had resulted in some of the initial camouflaging of S’s true difficulties.
Fortunately, those problems had been uncovered and were more 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 (the ability to make her own reasoned decisions). 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 (ie, the money all at once); there was careful consideration of the appropriate financial plan which should be in place with the independent Financial Advisor retained on S’s behalf. The case was compromised on a part lump sum and periodical payments (ie, payments made monthly or annually) for life basis. There remains an apparent misconception in some circles that where the Claimant does not succeed with 100% liability, then settlement by way of a periodical payments order is not appropriate. That certainly is not the position and each case requires consideration with the independent Financial Advisor who has employed to advise.
The Claimant in fact achieved periodical payments on a two stage basis 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, was extensive financial settlement to her for life and would ensure that she had the financial security 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. Appearances can be deceptive and it is important to ensure all aspects of someone’s life are discussed with as many members of the family and friends and work colleagues as possible.
SATINDER HUNJAN QC