Traumatic brain injury (TBI) is a head injury which disrupts the normal functioning of the brain. This can leave the injured person with a variety of continuing difficulties including headache, speech and language problems, memory and concentration problems and sensory problems. Historically, we have been concerned with how a TBI is sustained and how the brain recovers from such an injury. In the context of a personal injury claim, such an injury will have been caused as a result of the negligence of a third party, such as following a road traffic accident.
But what if there was a test that could show that you were more likely to suffer a TBI than the general population? What impact would this have on a personal injury claim? If the injury was caused during a ‘potentially dangerous’ activity voluntarily entered into, such as skiing or rugby, would the injured person bear some responsibility for the injury sustained? Would those individuals who are considered to be particularly vulnerable to TBI be required to take additional care to wear, for example, a helmet when cycling than those who did not have such a vulnerability?
A recent study has shown that the genetic makeup of an individual could make them more likely to suffer from a TBI following a head injury and/or concussion. The study carried out by the Indiana University School of Medicine has found genetic markers in the brain that show susceptibility to concussion, and of particular interest, TBI. Research has shown that those individuals carrying particular gene variations are 10 times as likely to suffer a concussion and 8 times more likely to suffer a brain injury as a result. Whilst this research is in the very early stages, such statistics are very interesting.
Commentators have suggested that this finding could potentially provide a blood test that would enable someone to find out if they were particularly vulnerable to a brain injury. This would have the advantage of allowing an individual to make an informed choice as to whether or not to engage in activities which carry a risk of injury. For example, this test could be used by parents when considering if their child could join the rugby or hockey team at school. Whilst such a test is unlikely to be definitive, it will allow a more informed choice. For example, if you knew that you suffered from a brittle bone condition it is likely that you would avoid activities such as skiing due to the increased risk of injury.
As detailed above, it will be interesting to see what impact this will have in the world of personal injury claims. A defendant must take their victim as they find them and cannot therefore avoid responsibility because an individual suffers from a particular vulnerability. But in circumstances where an individual engages in an activity that carries the risk of significant injury with the knowledge that they do suffer from such a vulnerability, it is perhaps likely that a defendant will try to argue that they must bear some responsibility for the injury sustained. Further, it remains to be seen if such a test would become a pre-requisite to organisations such as football clubs who wish to protect themselves from liability where players sustain repeated concussions when heading balls, an activity which has been shown can cause repeated concussion and injury to the brain.
Medical advancements are making the understanding of TBI clearer. Such advancements may result in fewer instances of brain injury and a better recovery in the survivors of brain injury