Losing your balance – case study of a minor head injury caused by a “tripping” accident

We recently settled the minor head injury claim of Mrs P for compensation of £35,000 (£31,500 after deduction for contributory negligence). She had lost her balance due to stepping in a 2 ½ inch rut in the highway created by bus wheels in Gravesend town centre.

She suffered some common place but very painful injuries; fractured ribs and soft tissue injuries to her ankle and elbow. More unusual were her head injury symptoms, injuries which we suspect many solicitors would have overlooked.

It seemed to us from meeting Mr and Mrs P that she had suffered some sort of head injury, even though this had not been diagnosed by her doctors. She had hit her head when she fell. Her account of her symptoms and some of the medical records suggested that there may have been some concussion.

A CT scan suggested no sign of brain damage but her symptoms she recounted to us indicated to us that there was some sort of head injury. She reported initially quite severe headaches, increased fatigue and falling asleep during the day, and some impairment of concentration and memory-all signs of a head injury. She had also become depressed.

The most unusual feature was a reported impairment of her sense of balance. This was supported by our impression on meeting them. This prevented her from returning to her usual activities including her hobby of bowling.

We carefully considered her medical records and initially instructed an A&E consultant to deal with her injuries in their entirety. He advised that she may have suffered post concussion syndrome and a minor head injury, which required further investigation by a consultant neurologist.

We then instructed the neurologist, Dr Chong. He confirmed Mrs P had sustained a minor head injury with various symptoms and an impairment to her sense of balance. He considered she had developed depression, which was a complicating factor in her head injury. He recommended further treatment and investigation by a neuro-psychiatrist and a neuro-otologist (a balance specialist). We instructed the consultant neuro-psychiatrist, Dr Bodani and the consultant neuro-otologist, Dr Surenthiran.

The insurers eventually made a part 36 offer of £35,000 less 10% contributory negligence. Mrs P was then just about to be examined by both Dr Bodani and Dr Surenthiran. However, we carefully consider the offer with our client based on the available evidence. It was clear that generally her head injury symptoms and depression were now improving, but it seemed there had been no significant further improvement in her balance impairment. It was also evident that she was finding the continued litigation including medical examinations to be stressful and this seemed possibly to be impeding her further recovery from her head injury. It would have been impossible to fairly evaluate her claim without an examination and advice from the neuro-otologist, because her most significant symptom the balance impairment was continuing.

We needed to know what the cost of treatment that would be and the potential prognosis before we could fairly value the claim. We cancelled the appointment with the neuro-psychiatrist but continued with the appointment with the neuro-otologist. He kindly agreed to expedite his report so that we could consider this within 21 days of the offer.

Dr Surenthiran advised that Mrs P indeed suffered balance impairment due to damage to her labyrinth in the accident which was currently of mild to moderate severity.

He considered it probable that the balance impairment would be improved through a combination of cognitive behavioural therapy and specialist physiotherapy, but that in her case there might not be a full improvement and there were some risk of no improvement.

He advised on the potential cost of the recommended treatment. On the basis of the most likely prognosis we carefully researched and considered the offer with the client and were able to advise her that taking into account the cost of treatment the offer was probably slightly more than the claim was worth. If there was no improvement potentially the claim might be worth slightly more, but that was a risk the client was willing to take she wanted to remove the stress of the litigation by settling the claim. The offer was therefore accepted on her behalf. This was paid within a few days of the settlement.

We understand she intends to use part of the settlement to pay for the treatment, which we hope will bring about a significant improvement in her sense of balance so that she is able to return to bowls and her other normal activities. The claim was settled and paid within 16 months of our instruction.

(Note: initially liability had been firmly denied by the council on the basis that the defect must have arisen in between the accident date and the last monthly inspection. We attempted to persuade the insurers that it was unlikely the defect can have become dangerous so quickly. They would not change their position and so we instructed a highways engineer who confirmed that it was unlikely the defect would have arisen and become dangerous in such a short period.

On the strength of that report we persuaded the highway authority’s insurers to admit primary liability. However, they alleged significant contributory negligence. We obtained further evidence and argued that the nature of this unusual defect made it quite difficult for an unfamiliar pedestrian like Mrs P to have seen this defect even though it was quite large. On our advice Mrs P accepted a compromise with a modest 10% reduction for contributory negligence arguments).

This case illustrates that even in minor head injury claims it is important to have a specialist solicitor/lawyer who understands head injuries to ensure that the right experts are instructed so that clients can get the right compensation and treatment. Balance impairment following a minor head injury can all too readily be overlooked by both doctors and lawyers.

This content is correct at time of publication