- March 6, 2014
- By Sana Bibi
- 0 comments
Proving causation in personal injury claims
It is well known that in order to bring a successful compensation claim, the injured person has to not only prove that a third party was responsible for their accident, but also that the injury was caused by that accident. In most cases, establishing a causal link can be fairly straightforward. In catastrophic injury claims, for instance, the severity of the injuries may leave little room for doubt. In other not-so-serious cases, medical records will often help confirm “causation”. However, difficulties arise when the onset of symptoms are not immediate or do not appear serious at the first medical examination.
Over the years I, and no doubt countless other practitioners, have had clients who faced obstacles in establishing that the symptoms they experienced for a number of years following an accident were caused by that accident. This is especially true of injured people who instruct solicitors quite some time after the accident and do not have the benefit of being advised to seek medical advice regarding ongoing symptoms. Some clients choose not to seek further medical help following their initial attendance in A & E until much later and when their condition has got progressively worse. This inevitably creates a gap in their medical records which can lead to issues on causation. Cynics may (and insurers do) of course argue that there was no continuity of the symptoms and that is why further treatment was not sought until such time it became necessary, but for reasons unconnected to the accident in question. Often there would be arguments about a “break in the chain of causation” and conditions being either pre-existing or degenerative. Understandably, a lot of people don’t appreciate the importance of seeking further medical advice before things take a turn for the worse. Most people try to carry on as normal in the meantime. Who can blame them? No one wants to trouble their very busy GPs unless they really have to.
Problems can also arise in cases where injured people seek treatment abroad. Medical records may not be retained by hospitals or doctors in the same way as in the UK and this can have a real impact on the value of the claim. I recently settled a claim for a client who was knocked off his bicycle by a car. My client was taken to hospital by ambulance and subsequently examined and x-rayed before being discharged home. No serious back injury was noted. Unfortunately he later developed complications which affected his mobility and bladder function. He self-treated and did not seek further medical assistance in the UK until much later. In the meantime, his relatives took him abroad (where the rest of his family lived) for treatment. He was advised on the management of his condition and that there was no cure. Following this advice from the doctors abroad he returned to the UK where he continued self-managing without proper medical input. It was some time before he sought further help from his GP.
This client initiated a claim for compensation for personal injury more than two years after the accident, by which time his condition had deteriorated considerably. I was later instructed to take over the claim from his previous solicitors. My client had initially thought the driver of the car could not be traced and wrongly believed he could not bring a claim. He only decided to make a claim when he found out the driver was charged with a driving offence and had insurance. Whilst I was able to obtain the records from his GP and the hospital in the UK, these appeared incomplete and had large gaps. Getting records from the hospitals and doctors aboard proved impossible as so much time had lapsed since he saw the doctors there. Also, they had a very poor system of record keeping. Vital medical records, x-rays and scans were lost.
Potentially my client’s claim was of substantial value, but unfortunately due to the missing records from abroad and gaps in his UK records, the medical experts could not be certain of causation. The claim settled for a five figure sum which my client was happy with in view of these difficulties.
It is so important that any injured person seeks medical attention and continues to do so to enable them to receive the best possible care and treatment. This will not only optimise their recovery but also help if they do have a legitimate compensation claim. If medical treatment is sought abroad, it would be wise to obtain copies of records, x-rays and scans. Sadly, by the time my client realised it was too late.