Second accidents: do they always break the chain of causation?
I recently settled a case for a client who fractured the scaphoid bone in his wrist in March 2011 when he tripped on an uneven paving stone. My client, who was in his early 40s at the time, was an experienced joiner/carpenter having worked in the industry since leaving school at 15. Following surgery in April, he was able to return to work in May 2011.
My client continued to work as a joiner but found, despite his surgery, his wrist was still painful. He had further surgery in September 2012, returning to work on light duties in October 2012. He continued to try to work as a carpenter but his symptoms increased as his wrist continued to deteriorate. In September 2014 his symptoms became so severe that he was forced to stop working.
The insurers of the local authority responsible for the pavement admitted fault early on in the case but alleged contributory negligence on the part of my client. They agreed to provide interim payments to fund private treatment and alleviate his financial difficulties. My client’s private surgeon recommended that he have wrist denervation surgery to see whether this would help his symptoms. The surgery did help to some extent and my client was able to return to work on light duties in January 2015.
Both I and the insurers had instructed a separate orthopaedic medical experts to prepare reports on my client’s injuries. The experts agreed that although my client’s symptoms had lessened following the surgery, his wrist would continue to deteriorate and he would ultimately require full wrist fusion surgery. Following this surgery he would have no pain in his wrist, but he would have limited movement in the joint. He would not be capable of continuing to work as a carpenter/joiner or in any role that involved sustained heavy use of the wrist/hand. He would have to seek employment in a sedentary role.
However, in January 2012, my client had sustained a further injury to his wrist when he hit a punch bag at a theme park. Whilst the orthopaedic experts agreed on the treatment and likely outcome for the wrist, the insurer’s orthopaedic expert concluded that the first accident was only responsible for my client’s symptoms up until the time of the second accident. According to him, after this, all my client’s symptoms were due to the second accident. In legal terms, he was saying that the second accident “broke the chain of causation”.
If the insurer’s expert was correct, my client’s claim would be limited to a 10 month period between the first and second accidents as the insurers could not be held responsible for any losses occurring after January 2012. My client would not compensated for any of the pain he currently experienced, his need for a full wrist fusion, and his inability to earn the as high a wage as he had been receiving as a joiner through to retirement age.
The insurer’s expert based his opinion on his study of various x-rays taken in the months after the first accident which he said showed the fracture was healing. The fracture following the second accident was also in a different part of the scaphoid bone which again suggested that a separate second accident was the cause of my client’s ongoing symptoms.
I advised the insurers that both sides needed expert evidence from radiologists to give expert opinions on the x-rays. The expert radiologist whom I instructed concluded that although the fracture did initially appear to be healing after the first accident, the x-rays in the months that followed showed very subtle signs of osteonecrosis: a disease caused by reduced blood flow to the bone, resulting in it being unable to heal properly, becoming brittle and vulnerable to further fragmentation. In his opinion, the initial fracture in 2011 had damaged the blood supply to the bone so that it was not adequate to allow the bone to heal properly. Our radiologist was confident that pre-January 2012, although the fracture line did appear to have disappeared, the fracture had not healed. The whole bone was still in the process of trying to heal, it was brittle as it was without an adequate blood supply and vulnerable to further trauma. The further trauma in January 2012 then caused it to fragment, resulting in a further fracture in a separate part of the bone, which would not otherwise have occurred.
The insurer’s experts radiologist said the opposite. In his opinion, the x-rays showed no sign of osteonecrosis and by the time of the second accident, the first injury had healed. The second injury was therefore a separate event that on its own was responsible for my client’s current symptoms.
The case progressed to a stage where discussions between the experts of the same disciplines took place to see if there were any points of the case that they agreed on so that the issues could be narrowed down. The radiologists’ discussions were uneventful: both radiologists continued to hold their previous views.
However, during the orthopaedic experts’ discussions, the insurer’s expert conceded that, instead of the initial fracture having healed by January 2012, it was more likely that it was “in the process of healing” so that it was vulnerable to further trauma. The insurer’s expert reluctantly agreed that, had it not been for the fracture in 2011, the bone would not have been brittle and vulnerable, and the incident in January 2012 would not have caused a further fracture.
It followed that both orthopaedic experts agreed that the second accident on its own could not be said to be responsible for my client’s ongoing symptoms: had the first accident not happened, the second accident would not have caused any problems for my client. He was therefore entitled to be compensated for his all ongoing difficulties by the insurers.
Despite this U-turn by their orthopaedic expert, the insurers continued to argue that they were likely to succeed in showing that the second accident alone was responsible for the ongoing symptoms on the basis of their radiologist’s opinion. They offered my client just £25,000 (not including the money they had already provided in interim payments) to settle his claim.
The trial of this case was listed for May 2017 but I pushed the insurers to participate in a meeting to see whether an out-of-court settlement could be agreed. This took place last week and following intensive negotiations, the insurers agreed to settle the claim for a further £150,000 on top of what they had already paid in interim payments. My client was very happy with this result.