I’ve recently been instructed to act for a little boy, whom for the purpose of this blog I will call Jake. Jake suffered serious brain injuries in a car accident a few years ago. He was a passenger in the back seat of a car which crashed into a wall. The driver of the car was found to have a very high level of alcohol in her blood and ultimately she pleaded guilty to dangerous driving. The little boy, who had not been properly secured in a suitable child seat, suffered horrific injuries. These included bruising to the frontal and temporal lobes of his brain and left sided subarachnoid haemorrahage, as well as multiple facial fractures and air inside the skull and eye socket.
Open and shut case?
There was no question at all that the driver was liable for my client’s brain injuries and the insurers quite rightly agreed to judgment being entered for my client, with damages to be assessed.
My client was not yet two years old at the time of the accident so we knew that it would be many years before anyone could say what the long term effect of his injuries would be. We also knew that before the accident, Jake was a happy and well-liked little boy. He went to nursery 4 days a week and there were no concerns about his behaviour or development.
After several operations and time in the Intensive Care Unit Jake was discharged home. Four months after the accident he went back to nursery, one day a week. Problems were immediately apparent. Jake had violent and emotional outbursts. He could not concentrate or pay attention. He could not recognise personal space or boundaries. His behaviour was seriously challenging. He quickly fell behind his peers in his education.
Or more complicated?
Discussions with defendant solicitors about how to manage the claim for a brain injured child in the years ahead are, depressingly, entirely predictable. Of course, they will argue, such a child is displaying typical features of autistic spectrum disorder (ASD), or he simply has “Special Educational Needs”. He has problems with social interaction and communication, including problems understanding and being aware of other people’s emotions and feeling, and he has attention deficit hyperactivity disorder (ADHD). How do we know he would not have had these problems anyway?
Defendants regularly argue that the social, behavioural, emotional and cognitive problems in young children who have suffered a brain injury could, like many young children with these problems, be due to autism or other learning difficulties and unconnected to the injuries sustained. If this argument were to succeed, the Defendant would not have to pay compensation for those problems, nor for any resulting loss of earnings or employment opportunities or care needs. Those losses could add up to many millions of pounds so it’s hardly surprising that defendants will try to reduce their liabilities.
Before saying how I respond to any suggestion that a defendant may be liable for the accident but not for my client’s ongoing problems, it’s worth taking a moment to look at what we have to prove on behalf of a brain injured child like Jake, and to what degree of certainty in order to succeed in claiming compensation for all his injuries.
The Claimant’s burden
In English and Welsh law, to be liable in damages for negligence, the defendant must have caused loss to someone. This is known as “causation”. Lawyers frequently refer to the “but-for” test as the basic test for deciding whether the defendant has caused loss and for establishing causation. Simply put, the test is this: would the claimant have suffered the loss but for the defendant’s actions? If the answer is “yes”, the defendant is not liable; if the answer is “no”, the defendant is liable. The defendant will be liable only if the claimant’s damage would not have occurred “but for” his negligence.
It is for the claimant to prove that the defendant is liable. The defendant is not required to prove that he is not liable.
A non-lawyer might well respond to the defendant’s question by saying “I don’t know whether he would have had these problems anyway – I can’t possibly know – that knowledge is way above my pay grade.” So, how can Jake prove that his injuries would not have occurred in any event?
The difference 1% makes
Fortunately, there is a huge difference between the standard of proof required in medical or scientific cases and that required in legal cases of negligence. For medical science, epidemiological rules require evidential proof of at least 95 per cent to establish causation. In the law of negligence, it is enough to show that that the balance of probabilities – meaning more than 50 per cent – indicates a causal connection.
If a judge concludes that it is 50% likely that the claimant’s case is right, then the claimant will lose. If the judge concludes that it is 51% likely (or more likely than not) that the claimant’s case is right, then the claimant will win.
Baroness Hale has said this
“In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other”. 
The difference between succeeding on the balance of probabilities and failing on the balance of probabilities is just 1%.
So, our burden on behalf of our child clients is to prove that his or her problems are more likely than not to be the result of the injuries suffered in the accident. In other words: that the defendant’s negligence was more likely than not to have caused all his or her problems.
Significantly, many children with a brain injury have precisely the kind of problems that often develop in pre-school and are diagnosed as ASD. These may include:
- “reacting unusually negatively when asked to do something by someone else”;
- “not being aware of other people’s personal space”, and
- “being unusually intolerant of people entering [his] own personal space.”
The term “Autism” or “ASD” is used simply to describe a constellation of symptoms and problems; it does not attribute those symptoms and problems to any particular cause. Furthermore, the symptoms that Autism is often used to describe could equally well be caused by injury to the brain, particularly to the frontal lobe. The frontal lobe is involved in planning, organising, emotional and behavioural control, personality, problem solving, attention, social skills, flexible thinking and conscious movement. Damage to this area affects our ability to solve problems, exercise judgement, be flexible, control our impulses and behave in a socially acceptable way. There is also evidence showing lingering interference with attention and memory even after good recovery from a Traumatic Brain Injury.
It’s helpful when acting for children with a brain injury to meet with the defendant’s solicitors early on. It’s important to build a constructive working relationship to ensure the claim proceeds smoothly over the years until it is capable of settlement, usually not before the child reaches the age of 16 at least. But when we meet, I don’t get into discussions about the definitions and symptoms of autism or distinguish those from the definitions and symptoms of brain injury. I don’t need to refer to theories on the causes of autism or the statistics on how many children in England do or do not have Special Educational Needs. All of that is completely irrelevant.
What is relevant are the facts about my particular client, based on the available evidence. Was Jake developing normally before the accident? (Yes). What physical injuries did he suffer? (He suffered bruising to the frontal and temporal lobes of his brain and left sided subarachnoid haemorrahage, as well as air inside the skull and eye socket). What problems did he go on to develop? (Social and behavioural problems). Are these problems consistent with the brain damage he sustained? (Yes).
In the light of these facts, I will argue, a judge will decide that it is more likely than not that his injuries have caused all his current problems.
A further thought
The fact that this issue is raised at all by Defendants, and the similarities between the symptoms of ASD and those of a brain injury, make me wonder how many children who have been diagnosed with ASD could have an underlying, undiagnosed brain injury, caused by someone’s negligence. There is no exact record kept but in the UK, it’s estimated that about one in every 100 people has ASD. In January 2014 about 53,172 schoolchildren in England were recorded as having some kind of autistic spectrum disorder requiring a “Statement of Educational Needs” (now replaced by Education, Health and Care Plans). The National Autistic Society says there is strong evidence to suggest that autism can be caused by a variety of physical factors, all of which affect brain development and NICE guidelines set out a list of factors that are associated with increased prevalence of autism. These include: birth defects associated with central nervous system malformation and/or dysfunction, including cerebral palsy. So, if you’re concerned that you or your child may have an undiagnosed underlying brain injury, please get in touch.