Child brain injuries - part 2

This episode forms Part Two of a two-part podcast series from the Weightmans Brain Injury Technical Unit, featuring Emma Eccles, Partner specialising in child and adult brain injury litigation, alongside barrister Mike O’Neill of Nine Chambers. Together, they examine the complex legal and medical considerations arising in child traumatic brain injury claims, with discussion centred on four key areas of focus.

Commentary, opinions, and views contained within this podcast are not those of Weightmans LLP or any of its members or staff and are not intended to amount to advice on which reliance should be placed. Weightmans LLP does not accept and disclaims any liability resulting from any reliance placed on such content by any recipient of the same, whether received directly or otherwise.

Transcript

Emma:
Hello and welcome to this Weightmans podcast focusing on child brain injuries brought to you by the Weightmans Brain Injury Technical Unit. This is the second in a two part podcast.

My name is Emma Eccles and I'm a partner in the Weightmans large loss team based in Manchester. I handle all large loss injuries but specialise in particular in child and adult brain injuries. I'm delighted to be joined today by friend and barrister Mike O'Neill from Nine Chambers. Mike exclusively acts in large loss claims for defendants and claimants and deals with cases of the utmost severity to include obviously our topic today, child brain injuries, but also adult brain injuries, pain disorders, amputations and spinal injuries. Mike, thanks again for joining me on this podcast where we're going to be looking at a number of discrete issues.

So we'll be addressing life expectancy, capacity, the approach to future loss of earnings, and what we do where there are cases where the claimant is sadly so severely brain injured that they're unlikely to make any meaningful recovery.

So Mike, I'd like to start by looking at a complex area of life expectancy.

I want to have your view on whether insurers should be looking to instruct statisticians as standalone experts given the complexity in this area.

If you could talk us through what life expectancy research is available for assessing child TBIs and when the courts might consider giving the parties the ability to instruct a statistician as well as the usual paediatric neurologist.

Mike: 
Thanks Emma. Well we know now that the life expectancy of those with traumatic brain injury is lower than that of the general population, and the primary research paper that is referred to is what we know as the Strauss data, a research paper from David Strauss and others which provides expected life expectancy outcomes based on age, sex and the severity of disability.

It is often relied upon, it's a starting point, but there is a degree of caution needed in its use.

It is a US study and therefore the figures need to be adjusted for UK life expectancy.

And whilst it is helpful as a guide, it really only puts an individual claimant into a pool by reference to the categories of disability, whether the claimant can walk and feed him or herself.

Beyond that, there needs to then be an assessment of the individual case and the individual features and consideration of whether or not the life expectancy figures need to be further adjusted.

And we can of course seek expert opinion on this, and we can instruct experts in statistics who can interpret the data and other research data available and try and give a more precise opinion on the exact extent of life expectancy and the reduction as a consequence of the accident. But as we will discuss shortly, it's one thing getting the report, obtaining the court's permission to rely upon it is quite often a very different issue.

Emma:
Thanks Mike, and just to recap for our listeners as well, the Strauss data of course is looking at children with cerebral palsy, not acquired brain injury.

But the data is incredibly helpful because it helps us establish that the most powerful prognostic factor for survival is mobility and feeding skills. So we know that children with fair motor and eating skills have good survival prospects, and the initial data suggested ninety percent or more would reach adulthood.

We know that an inability to move the child's head themselves or lift their chest significantly reduces life expectancy. And it's important of course to emphasise that living to age fifteen is a particularly important marker.

The evidence though, Mike, from our paediatric neurologist is also crucial here on life expectancy isn't it? I think it's safe to say, Mike, that the evidence from your paediatric neurologist is going to be crucial here isn't it?

They can be the best person to advise the court on the likely life expectancy reduction given their clinical experience.

Do you believe they're better placed to help the judge on this issue compared to a statistician?

Mike:
I do Emma and that is very much the view of the court it seems on this issue.

The case of Dodds v Arif and Aviva made clear that statistical or actuarial expert evidence should be restricted to three circumstances.

Firstly, where the clinical expert, i.e. in our case, the paediatric neurologist could not provide an opinion or when an expert has indicated they need the help of an actuarial expert or a statistical expert.

And thirdly, where they wish to derive help from statistical material, but they cannot agree upon how to deploy it.

And that decision was approved subsequently by Mr Justice Jay in Chaplin v Pistol.

So care needs to be exercised in seeking to reduce life expectancy evidence from a statistician.

My own experience has been that the courts are slow to grant permission for expert evidence of this nature, unless the clinicians have attempted to deal with it and have signposted to the court a clear reasonable requirement for expert evidence of this nature.

I've been involved in a case where the court refused permission for expert evidence from a statistician, even in circumstances where the difference it would make to the case in terms of the purported reduction in life expectancy was in excess of a million pounds. Now that was in a difficult case where the evidence was adduced late in the day and where the clinicians had not dealt with it properly.

And the trial date would have been jeopardized, which is something obviously judges are very slow to allow. But it does emphasise the point that this needs to be approached in the proper way with clinicians in the first instance, paediatric neurologist as the primary expert to consider this before any further bespoke evidence can be considered.

Emma:
Thanks Mike. And I think this goes to the point that we raised in our first podcast about the importance of the identity of the expert instructed to make sure they have the relevant experience and expertise. And as I've mentioned to you when we've discussed this topic previously, I have had experts who have misunderstood the Strauss data or have failed to take into account issues such as post traumatic epilepsy, which is much more common in acquired brain injury than cerebral palsy. So I think it's important to also emphasise that the clinical picture is going to change sometimes during the life of a case. So a paediatric neurologist may go and see the claimant at age six and then again at eight and then perhaps at age ten, and perhaps older. And the clinical picture may be very different, so it's important to ensure that the expert is assessing life expectancy every time they see that claimant and highlighting for us those important factors that have an impact on life expectancy.

I'd like us to move on Mike, to look at another contentious issue and this is the area of capacity.

Could you talk us through a little bit about the test for capacity?

Mike:
Yes, well this is as you've already indicated a contentious area and capacity has to be properly assessed by reference to the Mental Capacity Act and the guidance note that accompany it. And also in light of several authorities on this issue.

It's important to remember and to make sure all of our experts are aware of this. Of course, there is a presumption of capacity, but even where there are doubts about whether or not a individual has capacity, for example, to make a decision, there have to be all practicable steps taken to try and help them make that decision before the conclusion is reached that the individual lacks capacity.

It is not enough that an individual makes unwise decisions and the case law regularly emphasises the importance of personal autonomy.

So this is an area that can be controversial and it is an area where expert evidence is needed.

And I'm aware from having spoken to you about this before Emma that you've some recent experience of what appears to be somewhat of an emerging trend on the issue of capacity.

Emma:
Thanks Mike. Yes, as you've just said we can often face arguments about whether the claimant will be able to handle damages on conclusion of the claim, and we know this can make a significant difference to the value, because in that case the claimant will require a professional deputy, and we often see claims in excess of twenty thousand pounds, twenty five thousand pounds a year for professional deputyship fees.

So when we're assessing whether a claimant who's been injured at a young age will have capacity when the case settles, means that we're asking a neuropsychiatrist to look at a fairly young claimant, somebody in their late teens and early 20s, and assess whether they can handle sometimes multi million pound settlements.

And I know myself, I have two teenagers myself, would I be comfortable or be happy with them being handed four or five million pounds at the age of eighteen?

And the answer probably is no, but that isn't the test under the Mental Capacity Act for these claimants. And where they may make an unwise decision, if they have capacity, they should be allowed to make those unwise decisions and that's what the courts say. And I have some sympathy for neuropsychiatrists in this. I can see why it's difficult to say that a young claimant in their late teens or early 20s should handle a large sum, but they must apply the capacity test properly.

And you know this is about claimant autonomy isn't it? It's about people being able to make decisions for themselves. It's an issue of human rights almost isn't it? So I think it's really important for experts to consider that test properly and us as defendant insurers and solicitors, we need to make sure that the experts are applying that test properly and challenge them where we think it needs to be challenged.

And obviously discussing these issues in conference with experts and counsel, with other experts in other disciplines can really help here. And also looking at you know the rehab, the history of the rehab and the decisions that maybe a claimant has been allowed to make during the period of rehabilitation as they've got older can also be really helpful in assessing capacity. So I think this is, you know, this is a really important issue for insurers and it's something that we need to be alive to and we need to challenge when appropriate.

One other area that is really difficult for insurers is quantifying future loss of earnings claims where the claimant is injured as a child.

Because of course they won't have been in employment at all, they may not even have been at high school or in further education, so there's always going to be an element of crystal ball gazing about what they would have done but for the accident.

Mike, can you just talk us through what the approach would be that the judge will take in a particular case in assessing the likely career path and earnings of that claimant?

Mike:
Thanks Emma. The starting point really is the expert evidence.

And by that, I mean primarily the core experts. What do they say about this individual's pre accident history? Were they functioning normally and optimally, or were there issues already regarding behaviour, attendance, cognitive performance?

And what is the current condition that the claimant is likely dealing with and what is the prognosis?

But beyond that really, it's the role primarily of the educational psychologist to look at whatever academic records are available and try and estimate what the future might have looked like for that individual.

And then also to provide the injured position. What is the likely achievement level now going to be?

What kind of role is this child likely to be capable of in the future?

And part of that consideration is looking at the family background.

What of the parents, what did they do educationally? What have they done as careers? And what are they likely to have expected and wanted for their children?

Even if not graduates themselves, is that something that they say and should be believed is something that they would have wanted for their children?

What I of the siblings, are there siblings? Are they older than the injured claimants? What are they attaining? What kind of careers are they looking to go onto?

It is of course a very difficult head of loss to quantify as you've said. And understandably perhaps the claimant's legal team will often point to the most successful family member as the appropriate comparator.

And it is difficult because there will be a tendency for the courts to be quite sympathetic to the claimant on this head of loss and to potentially be quite generous.

Emma:
Thanks Mike. I agree with you that, you know, especially if there aren't any comparator siblings, the courts are going to err on the side of generosity here, particularly because we live in a country where we have good social mobility, so the fact that parents didn't go into further education or university shouldn't necessarily mean, a claimant wouldn't. I think the real difficulty for insurers is that we don’t have access to all the information that the claimant's legal team do, and they can control what information we have about the claimant's family and what they disclose to us. And obviously they're going to disclose a lot if those siblings have gone on to be high performers, and maybe keep information back if not.

In previous years we've been able to have access to siblings educational and employment records sometimes, but I know with GDPR arguments nowadays that's going to be more difficult. I'd also like to point out that there can be limitations when looking at school records for child claimants who've suffered a brain injury. I know with my own children that school records can give very glowing reports of children and you think 'gosh who are the children that they're talking about? They're certainly not the children I see at home'.

So they can often be sort of maybe more glowing about a child than may be the case. And I would you know I would suggest in really significant high value claims that you go and interview teachers. It's certainly something I've done over the years. You get a real picture of the family and the children, and you can often take witness statements, particularly say if that child is in high school for example, and there's been you know there's been a period of them being at high school that you can refer to.

We of course always have to remember that you've got children who may be going through puberty and who may be disruptive for a short period of time, and so we do have to take some caution when we're looking at school records sometimes and those interviews with teachers, because a child at thirteen or fourteen may not be the same child you would expect to see at eighteen, nineteen, and I think we can we can all say that about our own children as well.

So this is difficult, it's a difficult area, the courts are likely to be generous, but there are things that we can do, practical things we can do as defendants, get those school records, ask for access to sibling data and information, and interview teachers, you know, if we think it's necessary and it's obviously proportionate to the value of the claim.

Mike, I'd like to finish just by asking you to address tactics in cases where very sadly the claimant is so severely brain injured that actually there's going to be very little meaningful improvement in their condition after the index accident, or certainly you know within twelve to twenty four months of an index accident. Could you talk us through how you deal with those cases?

Mike:
Of course these are tragic cases and yes, I mean, these are obviously tragic cases, but it is possible because of the nature of the injuries, because it's fairly clear fairly early on that any recovery has already been achieved and that the status quo is what the child will be left with. It is possible to make progress with these cases far earlier than would be the case with a lot of child brain injury cases.

It's often possible to get experts to provide reports and final opinions at a much earlier date.

And with that kind of evidence on both sides, it's possible for the parties to properly explore settlements at an early stage.

We can look to lay down directions, agreed directions for exchange of expert evidence and for some kind of formal mediation, like a joint settlement meeting.

And even if that isn't successful and the parties remain too far apart, then there's a greater likelihood that the claimant will go ahead and issue proceedings and that the court will be seized of the matter. And the courts will allow cases like this to be listed all the way to trial. If the expert evidence does clearly indicate that no material or substantial improvement is likely.

So it's really in everybody's interests once the medical picture is sufficiently clear to try and resolve claims of that nature. But just as a reminder, there will need to be court approval and that in and of itself can create certain issues.

Emma:
Thanks Mike. That's brilliant. All helpful hints and advice for our insurer clients.

In terms of my key takeaways from this podcast, firstly, ask your paediatric neurologist to look at life expectancy early and ensure they are not just looking at the statistical Strauss data, but applying their clinical experience.

Secondly, if the expert needs guidance or you feel a statistician will further progress your claim, ensure that you look at the test the court will apply that Mike has already gone through to put yourself in the best possible position to get permission from the court for that evidence.

Thirdly, ensure that your neuropsychiatrist applies the correct test for capacity and you challenge where needed.

And lastly is that great reminder, Mike, that although many child brain injury cases can't settle until the claimant is an adult, where very sadly they are so severely injured that there's not going to be what we consider to be a meaningful recovery, we can get prognosis immediately from our experts and can proceed to a relatively early JSM and that will be obviously in the claimant's best interest as well as the defendant, and it allows the claimant and their family to get on with their lives.

Thanks again to you Mike from Nine Chambers for being on this podcast. This has been brought to you by the Weightmans Large Loss Brain Injury Technical Unit. Just a reminder of course that this is the second of a two part podcast and our earlier podcast, if you haven't listened to it, addresses issues of limitation, brain development and the importance of rehab and selecting the correct expert.

Thank you so much for listening.