Josh Hedgman secures pre-trial settlement of controversial £6.25 million brain injury claim for £750k

The private neurorehabilitation market exists because the rules on mitigation of loss make it difficult for insurers to challenge treatment, support and case management that is undertaken with the benefit of apparently specialist advice.

But what are the limits of the rules on mitigation of loss? Does the fact that the treatment advice is provided by the private sector with a financial interest in the claim make any difference? What happens when the rehabilitation makes no difference or where the Claimant is even worse off for it?

 

Josh Hedgman was recently instructed in a controversial TBI claim in which the conflict brought into play by the private rehabilitation sector was central to the dispute.

The claimant suffered a relatively mild TBI. But he lived independently for several years, commuting to and holding down part time work.

Over three years after the accident, the claimant was picked up by the private rehabilitation sector. He was told that he couldn’t work. He undertook a variety of therapies and was visited daily by support workers.

A year later, the claimant’s capacity was thrown into issue. He spent some of his interim payments on himself, whilst questioning the amount and cost of the support package that he was also paying for. The claimant grew frustrated with his support package, which led to a high turnover of treatment providers and support workers. Was this because the claimant’s brain injury meant he lacked insight into his condition? Or was it simply the understandable response of someone who was frustrated at being charged for support that he did not want or need?

Intriguingly, the capacity issue surfaced in response to witness evidence from the claimant’s case manager and support workers, rather than any clinical assessment. It coincided with the case manager’s request that the claimant’s damages be paid into an account held with the rehabilitation provider so that it could manage those damages for him.

The expert evidence called by the defendant presented a stark picture. The treatment and support were not just unnecessary; they had infantilised the claimant by reinforcing the brain injury and fostering a relationship of dependence. It was inconceivable that the claimant had gone from years of independent living to needing support workers every day of the week. Ironically, the only treatment requirement that the defendant’s experts could agree was that which was required to wean the claimant off the unnecessary package of support that had been put in place around him.

The claim was presented at £6.25 million, and the matter was due to go to an eight-day trial in January 2024. Shortly before trial, the claim settled in the total sum of £750k.

On 14 December 2023, the settlement was approved by HHJ Pearce sitting as Judge of the High Court. In giving judgment, his Lordship noted the gulf between the parties’ cases and the starkly different positions across the medical evidence.

Josh is recognised as a leading junior specialising in TBI litigation. He represents defendant insurers in brain injury claims that run into the tens of millions every year.

Josh was instructed by Graham Dickinson, Thomas Magee and Sam O’Brien of DWF London.

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