There are a number of different implications to consider firstly from a medical perspective and secondly from a legal perspective in relation to a claim for damages for personal injuries of this type.
1. MEDICAL PERSPECTIVE
The claimant may well be at an increased risk from developing epileptic fits for a number of years after the injury was sustained. This is a question which can be answered by a Consultant Neurosurgeon.. Depending upon the severity of the epilepsy the claimant could be in need of an increased amount of care, even round the clock.. Despite the willingness of immediate family members to assist, this is likely to put a considerable strain upon them and professional medical care is likely. Personality changes are often evident including more aggressive behaviour with which the non-medical family members would find it hard to cope and indeed to come to terms.
Secondly the claimant is likely to be limited in the quality and quantity of employment s/he can undertake, if any at all. There exist medically based companies and organisations to assist with the assessment of abilities in this connection and even assistance with placement in suitable supported work environments.
Neuropsychological assessments will be necessary to establish to what extent if at all the claimant has been disadvantaged by the injury. They will need to examine the educational records of the claimant, particularly if relatively young, and any assessments of ability which may have been made by any body with authority in the field of education training and skills. An educational psychologist report should be considered. Various IQ and other tests will be undertaken by the Neuropsychologist to establish the current level of functioning.
Evidence will be necessary from an Occupational therapist covering the support required to compensate the claimant for their orthopaedic injuries and from a Nursing or Care consultant regarding the required level of assistance both medical and non-medical for the claimant.
Speech may well be impaired and the evidence of a Speech Therapist should be considered.2. LEGAL PERSPECTIVE
Of course the first point that will occur in the light of all these expert witnesses is that this flies in the face of the expressed objective of the Civil Procedure Rules to cut down on the number of expert witnesses. A robust approach should be adopted with the District Judge dealing with the case management. Reasoned arguments should be prepared to persuade him/her that all these experts are indeed necessary with injuries of this nature.
The Practice Direction to Part 35 of the Civil Procedure Rules provides:
Where the court has directed that the evidence on a particular issue is to be given by one expert only (rule 35.7) but there are a number of disciplines relevant to that issue, a leading expert in the dominant discipline should be identified as the single expert. He should prepare the general part of the report and be responsible for annexing or incorporating the contents of any reports from experts in other disciplines."
It may well satisfy the natural inclination of the District Judge to limit the amount of expert evidence if this particular technique is proposed at the earliest opportunity. Of course it will be difficult to identify the leading expert until reports from all the experts have been obtained and where single joint experts have not been obtained a joint statement of issues produced. Indeed in this type of personal injury claim there are both attractions and disadvantages to the single joint expert approach.
Not all medical experts have shed the traditional hired gun attitudes to medical reports despite the required preamble to their reports. This is particularly true of experts who may well be consulted by the larger firms on a regular basis and whose loyalties may therefore be open to question. Perhaps care should be taken to avoid experts who practice within the immediate locality of the larger firms. Efforts should perhaps be made to establish how many reports and how frequently the proposed single joint expert are commissioned by the larger firm of solicitors. The point is not easy to make or prove but should be addressed in view of the objective of the CPR to cut back on the quantity of expert evidence.
Provisional damages should be claimed if there is any realistic risk of the development of epilepsy. This will enable the claimant to return to court for further compensation if the claimant’s condition deteriorates.
At the very least Counsel experienced in the higher value personal injury claims should be instructed and leading Counsel should be considered.
It may well be in the interest of the claimant to instruct certain experts regardless of the fact that the court in case management may refuse permission to rely upon their report at trial. The leading expert technique could be an answer. The claimant should of course, be warned that the cost of that expert may have to come out of the damages awarded if the court agrees with the inevitable objection by the defendant solicitor to the costs being part of the inter party costs.
One implication from the various medical problems outlined above which also has significance to the legal issues is the necessity for day to day support for the claimant. This support will depend upon the severity of the claimant’s injury. In the worst case it could require 24 hour support. On the other hand family support may well make it unnecessary or limit the professional support required. Usually a Case Manager is necessary who will have the overall supervision of the claimant. Their professional judgement of the extent and nature of the support worker will be called for. They will advise and control the support worker, his/her selection and the rate of his/her payment. All of this will have to be formally costed, extrapolated over the remainder of the claimant’s lifetime using the multiplier suggested by actuarial tables and included in the schedule of special damages.
Finally consideration should be given to whether the claimant can now or will in the future be able to manage his/her own affairs. Even if the claimant will be more susceptible to manipulation it may well be in the interest of the claimant to approach a consultant psychiatrist with a view to considering the appointment of a Receiver by the Court of Protection to administer the funds which will be available to the claimant after the award of damages. Of course if a Receiver is appointed, then it will be necessary to seek the appointment of a Litigation Friend in the proceedings. Providing the litigation friend proposed has no contrary interest to the claimant and the other conditions provided by Part 16 as follows:
[The litigation friend proposed …]
"(a) can fairly and competently conduct proceedings on behalf of the patient;
(b) has no interest adverse to that of the patient; and
(c) where the patient is a claimant, undertakes to pay any costs which the patient may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the patient."
It should be borne in mind that where a claimant becomes a patient during proceedings, no party may take any step in the proceedings without the permission of the court until the patient has a litigation friend, and any step taken before a child or patient has a litigation friend shall be of no effect unless the court otherwise orders. Part 21.3 (3) and (4) CPR. Both parties are affected by this rule of course. It is therefore just as important for the defendant to ensure that a litigation friend is appointed where necessary.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.