Brain injury compensation claims: adopting a common sense view

Cases involving brain injury are complex and very hard fought. The victim has endured life changing injuries. All too often these problems are then compounded by arguments, over many years, covering who should shoulder responsibility for what happened and how much they should pay.

In the recently decided case of Sobolewska v Threlfall (2014) the court was asked to determine liability where the insurers argued that a pedestrian’s massive head injury did not occur when the motorist hit her, but instead must have happened at some point in the moments beforehand.

It is not unusual for liability to be contested in serious injury claims, however this case is a really exceptional example of an injured person having done little wrong and the motorist’s insurers maintaining complete innocence in the most implausible of circumstances.

The pedestrian was walking home from work. Around 10 minutes after leaving, she was making her way through a car park on route home when the motorist’s vehicle struck her (at low speed) and knocked her to the ground.

The injuries included brain damage leading to aphasia, cognitive deficits and weakness in the right arm and a fractured ankle. As a result of her brain injury, the victim had no memory of events around the time of the accident.

The driver said he did not know what happened. His insurer’s legal team sought to convince the court that the injuries must have been sustained not in the accident itself but before it.

It was a dark, cold night. There were no witnesses. The only independent statement was from a woman whom the motorist spoke to after the accident. He told her that he had run someone over.

Subsequent arguments on liability included that the victim may have been knocked unconscious in an assault on the way to the car park and knocked out, only to regain consciousness continue walking and then fall unconscious again in front of the car. By this point the insurers had conceded that the fractured ankle was accident-related; presumably because the victim would not have been able to walk in front of the car otherwise.

The police found no evidence of criminal activity. The pedestrian’s rucksack remained with her. The judge said it was incomprehensible that she would have suffered two periods of unconsciousness as alleged. There was a tyre mark on her shoe. The judge was sure, on balance, that the pedestrian and the car had ‘inter-reacted’ and that the resulting injuries, all of them, were caused by whatever happened between the two.

Precisely how the accident happened was unclear but thankfully the court took a pragmatic and common sense view. Any other scenario was deemed highly improbable when considering the evidence as a whole.

The case was unusual and there were some uncertainties but the insurer’s conduct in maintaining a denial of liability is beyond belief.  It took almost 3 years for the matter to come before the court. The brain-injured pedestrian would have been deprived of much needed funding for care in the interim. It must have been an intolerable time for her and her family. They will righty feel as though justice has finally been served.

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