Recently, I have been dealing with a case in which a patient was injured by a minor mistake during surgery. He has a number of other complex medical conditions as a result of which he suffers some psychological difficulties. These are not extreme but they are not inconsequential.

The argument that has been put forward by the defence is that because my client suffers from pre-existing conditions, any additional injury caused by the surgical error is so insignificant as to not to be quantified. Less sympathetically the other argument appears to be that his reaction to a relatively minor event is unwarranted. A “normal“ person would have shrugged it off.

Understandably my client is distressed by the suggestion that his injury has no value because he already had some pre-existing issues. In addition, it is upsetting to feel others are judging you as reacting to perhaps a minor injury in a “disproportionate “ way.

Actually, the legal position is not quite so unsympathetic but it can be complicated.

The law recognises that a pre-existing condition can sometimes make a person more likely to suffer from an additional injury because they are more vulnerable. In addition, the law accepts that some of the injuries may not have been caused by negligence but by some other factor. Medical experts are asked to identify which part of a condition is caused by non-negligent factors and which are as a result of the negligence. Lawyers can then quantify the value based on that evidence.

The law also recognises that the victims of accidents and negligence come in all shapes and sizes so some can have horrendous traumatic accidents and appear, psychologically at least, to come away unscathed. Other individuals, either through pre-disposition or just, as a matter of fact, can have fairly minor accidents with psychologically devastating consequences. There may be no explanation as to why people react so differently. In law, it makes no difference.

The reason that a person reacts differently is not usually relevant. What is important is that as a result of negligence some injury has been sustained whether physical or psychological. It makes no difference if other people who would have had the same accident would have had a different reaction. The law takes each victim as they find them.

For lawyers on the other side of this argument, to find a claimant with a pre-existing psychological problem or a previous history can be rewarding. They can argue and try to obtain evidence that the accident or negligence made little effect overall. On occasions, despite quite clear legal principles, it has been argued to me that the reaction of the claimant is wholly disproportionate to the injury they have sustained as if that has any relevance whatsoever.

Taking a claim is not easy as medical, educational and work records are subject to scrutiny. Defendant experts can provide unsympathetic and sometimes harsh reports.

Claimants should not be put off making a claim even if other people might have recovered easily from an accident of a similar nature or where they themselves consider their reaction is out of proportion to the injury they have sustained.

A response to an accident whether physical or psychological does not have to be considered proportionate. A pre-existing condition does not block a compensation award. It simply means that the person requires a lawyer who knows how to run a claim.

In the case referred to earlier, my client has suffered significant difficulties. This is on top of the enormous problems he already suffers. It is not a valid argument that he would have suffered difficulties in any event or to suggest that the negligence made no difference to his life. He would not have suffered those difficulties, to that degree, at that time, but for the negligence. In law, he is entitled to be compensated and I hope that the defendant, in this case, will soon take a more sensible approach.

Fortunately, my client is determined. Many others would not feel able to deal with litigation when faced with such responses. Claimants can be put off taking legal action because of the bad publicity that is associated with legal claims. Small incidents can lead to enormous consequences.

In the meantime, however, if you have suffered through an accident or negligence, do not consider that you should not take a claim because your injury has been out of keeping with how perhaps others would have reacted. The law looks at the individual who has suffered the negligence. The lawyers should do the same.