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Title: Head injury symptoms and "egg shell skull" rule

Date: 07 November 2012

Question

I was involved in an accident where I was hit from behind by a car.  I have been told that the driver of the car admitted fault in full.  I only suffered some minor injuries to my neck, back and shoulder and I have had some physio for these injuries.  I also rather worryingly hit my head when I came off the bike.  I was wearing a helmet but I hit the floor quite hard and rebounded and hit my head on my helmet too.  When I was younger and in school I did suffer from depression and behavioural issues which affected my work and my studies for at least a year.  I was treated for these conditions and managed to pull through and attained high grades when I left school.  I now have a professional job and am in charge of a team who have told me since the accident that I often ‘space out’ or ask them to complete tasks when they have already done it the day before. 

My wife has also told me that I am distant and can snap and get angry when usually little things wouldn’t have bothered me.  My current solicitors have told me that the Defendant’s solicitors have told them that because I had depression and behavioural issues in the past I can’t now claim for these injuries as I was prone to them anyway.  I had overcome these problems when I was younger and managed to get a successful job.  I blame my current problems completely on the accident.  How can the Defendants tell me that they are not going to pay out for the damage they have caused just because they think I was prone to these injuries?

 Jake, Wiltshire

Answer

Jake, thank you for your query and I am sorry that you have had to go through this ordeal because of someone else’s negligence.

There is an established principle in law known as the ‘egg-shell skull’ rule or ‘taking one’s victim as we find them’.  What this basically means is that it doesn’t matter if you are prone to some sort of injury, in your case depression or cognitive issues, if it has been caused or brought on by someone else’s negligence then it is their fault and you should be compensated for it.  What you have to consider is would you have the problems and injuries you have now if you hadn’t had the accident?  I suspect the answer is no which means it is the Defendant’s fault and they should be liable for the injuries and pay out for them.

The Defendant’s solicitor is likely to argue that you would have had this relapse or these problems would have surfaced again even had you not had the accident.  Even if you would have it does not matter based on these facts.  As the problems were brought on by the accident it is the Defendant’s fault.  To help prove your case you will need clear and concise expert evidence likely from a neurologist, psychologist or psychiatrist to comment on the injuries and problems you had as a child, how you overcame these and managed to lead a successful life and then how the accident has caused you to suffer from these problems again. 

You also need to make sure that you are compensated for all the aspects of your life that the depression and cognitive issues are causing.  I note that you are back in work but that you are struggling somewhat due to the problems the accident has caused.  It is likely there will be a loss of earnings claim even though you are back in work because you are not working to your full potential as you were before the accident.  Your solicitor should take statements from your work colleagues to determine how you were before the accident and the change since the accident.  They should also take a detailed statement from you and your wife to show the effect the accident has had on your marriage. 

I realise that taking these statements will be difficult but this will ensure you are compensated fully for everything the accident has affected.  Finally, and probably most importantly, you should make sure that you are receiving the correct treatment and this can be paid for by the Defendant’s insurance company.  If this is not being funded by the Defendant’s insurance company your solicitor should be trying to force their hand and possibly go to court to get the funds released if they refuse to pay for it.

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