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Counting the Cost: Provisional Damages for Epilepsy and Dementia in Brain Injury Cases

23 June 2022

Nothing captures the headlines quite like a multi-million pound court action. It all adds to the theatre of the court, doesn’t it? Albeit the parties involved were high profile individuals themselves, one just has to consider the way in which the media treated a certain $100m defamation action as mere popcorn fodder, despite the seriousness of the subject matter.

In the context of personal injury, however, a high value claim often means a very serious injury has occurred.  That was indeed the situation in the recent English case of Mathieu v Hinds and Aviva [2022] EWHC 924. Given the sums involved, it is little wonder that the case attracted the attention of the press.

Rhona McKerracher

Rhona McKerracher

The £33m claim (you read that right) arose from a road traffic accident.  The claimant, then aged 29, was studying for a Masters’ degree in Fine Art at Goldsmiths College, London.  He suffered a traumatic brain injury when he was struck by a stolen moped whilst crossing a London road at a pedestrian crossing.  He made a very good recovery and went on to develop a very successful career.  Liability was not in dispute.  Ultimately, he was awarded around 10% of the total value of his claim.  The precise detail around that is a tale for another day.

For present purposes, the interesting point for insurers concerns his claim for provisional damages for the risk of developing epilepsy and post-traumatic dementia in terms of s32A of the Senior Courts Act 1981.  The Scottish equivalent would be s12 of the Administration of Justice Act 1982.  There are subtleties between the two provisions but in essence, they both allow a court to order provisional damages where it is ‘proved or admitted to be a chance’ that the injured person will later develop some serious disease or suffer some serious deterioration in their physical or mental condition as a result of the accident. 

In assessing whether or not to award provisional damages, Mrs Justice Hill referred to the three-stage test set out in Wilson v Ministry of Defence [1991] ICR 595, namely: 1) Is there a chance of the claimant developing the disease or deterioration in question, (ii) Is the disease or deterioration serious and (3) if so, should the court exercise its discretion to make an award.  The ‘chance’ must be considered ‘measurable rather than fanciful’.

So far as epilepsy was concerned, experts for both sides agreed that the claimant had an increased risk of developing epilepsy as a direct result of the brain injury.  The claimant’s expert put the risk at 8%, whereas the defendants’ expert put it at 5-7%.  Either way, this was considered by the judge as being measurable and the court considered that the Willson questions were satisfied.  Provisional damages were, therefore awarded, for his chance of developing epilepsy.

On the dementia risk, however, the expert evidence was more disparate. The claimant’s expert put forward the view that there is growing evidence of a risk of developing dementia following a traumatic brain injury; the defendant’s expert took the view that there was insufficient evidence of such a risk and indeed described the literature on this point as ‘a mess’.  He considered that the research was flawed by various issues and both experts agreed that there were other factors, independent of brain injury, which can predict the onset of dementia, including: advanced age, sex, deafness, obesity, diabetes, hypertension, the level of physical and mental activity, the level of education, alcohol, depression, sleep deprivation/fatigue, social isolation, nutritional factors and other lifestyle factors.

Having considered the evidence, the judge’s view was that the claimant was unable to show, on the basis of current science, that there was more than a fanciful chance of him developing dementia as a result of his brain injury and ultimately, this part of his claim fell at the first Willson hurdle. As such, no award for provisional damages for his chance of developing dementia was made.

From experience, provisional damages are not routinely sought in high value Scottish cases, aside from those arising from industrial disease.  Provisional damages appear not to be particularly popular to either side; many pursuers prefer the finality of litigation; insurers dislike holding potentially large sums in reserve for years.  However, it is understood that seeking provisional damages is more of a trend south of the border.  This case has closed the potential floodgates somewhat, at least so far as dementia is concerned.  At least until there is more research.  Watch this space.

Rhona McKerracher, Associate: / 0141 221 8012

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