TBI cases in Scotland and Northern Ireland
Scotland
Scotland has several features which make it a more challenging jurisdiction for investigating and defending traumatic brain injury cases.
The first and most obvious challenge is the large geographical area, with cities located primarily in the central belt and east coast, and much lower population density throughout the rest of the country. The highlands and islands are, obviously, especially remote. At present, the incidence of serious injuries in road traffic collisions is, in Scotland, higher than the rest of the UK per head of population, in part a symptom of having fewer urban areas and more rural A and B class roads, which tend to feature higher speed collisions. The North Coast 500 and the A9 are notorious both for motorcycle accidents and also for foreign tourists unfamiliar with driving on the left. Injuries often require triage and immediate treatment at a more rural hospital before transfer to one of the larger national centres in Glasgow, Edinburgh or Aberdeen which can cause delays in specialist treatment.
Secondly, in a smaller population, the correspondingly small pool of neurologists, neurosurgeons and neuropsychiatrists is inevitably a challenge. Through the pioneering work of, among others, Professor Alan Carson and Professor Jon Stone, Scotland has become a centre of excellence for academic research into conditions such as functional neurological disorders, and conditions that lie on the border between clinical psychiatry and neurology, as well as brain injury rehabilitation generally. This has several consequences. Experts in Scotland (such as Professors Carson and Stone) are often instructed in cases from elsewhere in the UK, which obviously has a consequence in terms of their availability generally and increased waiting list times. Furthermore, with a small pool of experts locally, local expert witnesses are often simply unavailable, either because they have been involved in the claimant’s treatment, or because they have already been instructed by the claimant’s solicitor. This is particularly acute in neuropsychiatry where there are, in practice, only four local Scottish experts (including Professor Carson). It is not unusual to find that experts elsewhere in the UK must be instructed simply through a lack of other options available locally.
Thirdly, in rural areas in particular, rehabilitation can be a challenge, both in terms of case managers able to cover a remote location, and in the availability of local rehabilitation services. The increased use of remote therapies (for example, psychological counselling, or MDT meetings) is of some assistance, but challenges remain in terms of (for example) accessing neurophysiotherapy, pain management, or general neurological rehabilitation.
As the country which literally invented the Glasgow Coma Scale, Scotland has a proud history of leading the development of brain injury treatment. The key to addressing the identified challenges is to identify issues as early as possible, whether from a medico-legal or rehabilitation perspective. Assessing the medical issues at the outset and instructing the right experts as early as possible is even more important in Scotland, in particular in neuropsychiatry and neuropsychology. In rehabilitation, a multidisciplinary approach is key, as is working with a case manager with a proven track record of accessing services locally. The use of early Immediate Needs Assessments (INAs) is particularly important to allow appropriate experts and effective rehabilitation to be put in place.
Northern Ireland
In Northern Ireland, TBI claims present particular challenges not only due to demographic trends, evolving clinical pathways and pressure on public services but also as a result of the legacy left by the 'troubles'. The latter can often complicate recovery, particularly in the field of mental health.
Whilst Northern Ireland, unlike Scotland, does not encompass a large geographical area, it does face similar problems, in particular, the small pool of medicolegal experts available in a small jurisdiction, a problem compounded when the Plaintiff instructs a preferred expert first. Often the only solution to this significant hurdle is to seek expertise in Great Britain and the Republic of Ireland.
The adversarial nature of litigation makes early interventions and rehabilitation difficult as Plaintiff's solicitors will often advise their client not to engage out of fear that the defendants are embarking on a 'fishing expedition'. That said, more recently Plaintiffs have been engaging more readily with rehabilitation as the public health Trusts are strained and delays in treatment can often be circumvented by private medical care offered by paymasters.
While relatively few catastrophic brain injury cases in Northern Ireland reach Trial or result in reported judgments, recent decisions and UK authorities provide important guidance on how the Northern Ireland courts approach these claims (Van Wees -v- Karkour [2007] EWHC 165 (QB), Reaney -v- University Hospital of North Staffordshire NHS Trust [2015] EWCA Civ 1119 and Paul -v- Wolverhampton NHS Trust [2024] UKSC 1).
The Courts will adopt a realistic and evidence based approach to brain injury claims recognising catastrophic disability and subtle cognitive impairment. One of the clearest Northern Ireland authorities is Gilliland -v- McManus [2013] NI QB 127 where the Plaintiff suffered a severe traumatic brain injury in a road traffic accident. The Court accepted that the Plaintiff would experience permanent neurocognitive deficits, affecting judgement, independence and life prospects, requiring ongoing supervision and structured care. In this case, the Court looked closely at loss of independence and need for supervision even though the Plaintiff could function to some degree.
As in Scotland, the key to addressing the jurisdiction specific challenges in Northern Ireland is to identify the medical issues as early as possible and commission the appropriate medico-legal and care experts. The INA framework should be adopted as this will facilitate the use of the correct experts and, once they have been identified, the adversarial nature of the jurisdiction facilitates the use of forensic accountants who will base their calculations on the defence experts’ conclusions.
