CHARLES McCOY

"MINOR" HEAD INJURY RECEIVES £445,000

CASE REPORT

The plaintiff slipped at work and fell, hitting his head. He was unconscious for two or three minutes, taken to hospital and discharged the same day. There was no recording of his score on the Glasgow Coma Scale, and the best estimate of his Post Traumatic Amnesia was that it was up to 20 minutes. He returned to work the following day, although he had to go back to hospital because he could not manage. He did not then work for a few months, but later obtained a job as a garage attendant which he kept for over three years (possibly because members of his family worked in the same garage, and were able to protect him from some of the difficulties of life).

On any account, this looked like so-called "minor brain injury" (in America they tend to disapprove of the word "minor", and describe this type of injury as "subtle"). Whatever one calls it, the nature of the injury would have tended to indicate in the early stages that this was unlikely to be a substantial claim.

However, some years after the accident the plaintiff developed some form of absences, loss of consciousness or fitting, which was eventually diagnosed tentatively, after several years, as probably being due to epilepsy. In addition, he always complained of left-sided weakness (hemi-paresis?).

There was a substantial issue between medical experts as to whether the epilepsy (assuming it was epilepsy) was caused by the accident, the onset having apparently been so late, and whether other problems (personality, cognitive and behavioural) were also the result of this minor brain injury. There was a prevalent medical view that it would be difficult to attribute all these problems to such a minor accident, although the other side of that particular coin was that the plaintiff had been perfectly alright beforehand.

A subsidiary issue was whether the plaintiff was a patient within the meaning of the Mental Health Act. This issue had to be tried (what is called a "capacity hearing"), and the judge decided that the plaintiff was indeed a patient. This does raise a nasty little problem for plaintiffs' lawyers, because on the one hand they have a duty to the court to present what they believe to be sensible and respectable medical opinion, but on the other hand they represent the plaintiff, and the result of such opinion will be that he is deprived of the ability to manage his own affairs. We decided that we would have to tread delicately along that difficult path, and so we presented the evidence neutrally to the judge. The compelling aspect of our evidence was that we had selected the treating neuro-psychiatrist, the treating neuro-psychologist and the treating neurological social worker, all of whom had several years experience of this plaintiff.

The result of the capacity hearing was that the plaintiff was declared to be a patient; the defendants therefore had to re-consider their payment into court in order to allow for the costs of the Court of Protection, and they increased their offer.

The plaintiff's legal advisers were then presented with another difficult problem. Both the plaintiff and his next friend were keen to accept the money on offer, even though it was against our advice. We had to act on the next friend's instructions, and seek the judge's approval, but of course we had to make it clear to him that we had advised against settlement at this level. Because of the increase on the payment into court, and because there was an outstanding issue about contributory negligence, the judge felt able in the end to express his approval, and so bring the action to a close in a way which satisfied the plaintiff.

I am reporting this case because the final award was £445,000 for an apparently minor brain injury. No wonder the Americans tend not to like that word, because it really is so misleading. Practitioners representing plaintiffs who have suffered injuries to the head should always be aware that there may be a significant injury to the brain which can have a disastrous effect on someone's life.

BILL BRAITHWAITE Q.C. and GERARD MARTIN were instructed by Amjed Malik of Goldwaters, Newcastle upon Tyne.

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