Spinal injury

In simple terms waist level paralysis. In life terms every thing is different.

I handled a case for a young soldier, who I will call John. He was off for the weekend, and got a lift in the back of a friend’s car. The driver had to take evasive action to avoid another car changing lanes. The car rolled over several times, and John, who was not wearing a seat belt was thrown out of the back window. The spinal cord was damaged which left him paralysed below the waist.

He had great treatment and rehabilitation at the Army’s specialist facilities, but there came a point when he was discharged on medical grounds and had to make his own way in the world. The case was defended by blaming the driver of the other car who made the evasive action necessary, and criticising the failure to wear a seat belt. The first argument was defeated, but the second is set in stone. Not wearing a seat belt means an automatic reduction of compensation by 25 per cent if wearing a seat belt would have prevented all but minor injury, and 15 per cent if wearing the seat belt would have substantially reduced the injury. Once more I get the opportunity to point out the very real effect of reducing the total compensation if there is a finding of contributory negligence. The decision which sets out the law for failing to wear a seat belt pre dates the law on compulsory seatbelt use.

Perhaps as a result of his military training, or just his own determination and courage, John found himself a home, an adapted car, kept fit, and kept positive. This was necessary as the defence of the case meant it was not possible to quickly obtain an interim payment to ease John’s passage into his new life. He struggled for a time in a ground floor council flat until able to buy his own house, and adapt it for wheelchair use, when the case was complete.

Cases involving serious injury are very expensive for insurance companies. They cannot be blamed for trying to defend an expensive case, but there are differences between the approach of insurance companies. Some have to be forced, and some will work with you. Such cases are best resolved with experienced people on both sides.

I have pointed to the effect of a finding of contributory negligence elsewhere. The effect is greatest in the most severe injury cases, because the needs of the injured person are so great, and therefore expensive. If you are found to have contributed a percentage is fixed to identify your share of the blame for the accident, and that same percentage is shaved off the value of your compensation. A clear example of this effect was a motorcyclist who suffered a high level spinal injury which left him almost completely paralysed.

A Court decision said he was one third to blame, so one third was shaved from the value of his compensation. The only pure compensation given for this type of injury is the general damages for pain, suffering and loss of amenity (what can no longer be done), and the top end for compensation is £250,000. The real expense in such a case is the care regime. Employing  carers all day every day is expensive, and is the reason some of these cases settle well above £5,000,000. The care regime cost is based on annual care cost projected forward based on the life expectancy of the injured person. A young person with a good life expectancy will need many years of care, a a great deal of compensation.

The problem in the example case was the one-third finding of contributory negligence. The fear for any compensation amount is that it will run out, but when you are down by one-third at the start, what chance is there for a good care regime and everything else which is necessary.

We cannot imagine what someone so severely paralysed experiences, particularly when fully aware of their circumstances. You might be able to imagine what is necessary to take a trip away from home for a day, and when you do you must not leave out an appropriately adapted vehicle, at least two people in case any lifting is necessary, a powered wheelchair, and the time and energy to take account of how long it all takes. In terms of compensation, all of this costs money, and lots of it. If you start with one-third off the compensation, you might just stay in bed or a wheelchair.

This accident was caused by a driver pulling out across the road from a petrol station. The driver did not see the bike approaching along a straight road. There are many explanations you can give for causing such an accident, but not seeing the motorcycle is not good enough. The law does allow the driver to try to prove the rider was travelling fast, and could have stopped or steered around the van if speed had been lower. One-third to blame was the Court’s decision, but that one-third is taken off the total value of the case, and effectively only funds a care regime for two-thirds of the anticipated lifespan.

We can say the result is unfair, but the injured person who cannot seek compensation might say it is better than having to rely on the bare minimum provided through the State benefit and NHS system.

My experience of dealing with such cases is always one of mixed feelings. You can only deal with the case in the best way possible, working with the client and family to provide as much financial help as possible. What is always humbling and cheering is the remarkable guts and fortitude shown by the injured person and those who rally round to support.