28 September 2010
Back Pain: A Further Explanation
In an earlier blog on back injuries I commented on incidents whereby the medical evidence suggests that the accident in question could be said to have brought forward symptoms. I raised these issues to explain what common practice is in these situations. The medical specialist, on receipt of the accident report, may confirm the suggestion that the accident could have brought forward symptoms. I have chosen this further blog to explain briefly what legal tests apply when considering this position. These tests must be applied to the particular circumstances of each claim to enable the claim to be given some value.
I say this as whilst damages are meant to put the client back in the position that they would have been in had it not been for the accident, the Court will of course look to see what is the reality of the position. For example, if someone had complained of back pain for many years, had undergone operations, and was suddenly involved in a car accident which caused a further injury to the same part of the back, it stands to reason that a Court would be interested to hear from a consultant whether this person would have complained of back symptoms to the same extent at some point in the future. The question therefore is what is likely to have been the case in the absence of the accident. The actual test is known as the ‘but for’ test. In other words, but for the accident in question, what on balance is likely to have been the case. It must not be forgotten that what is being applied is the civil burden of proof.
On the balance of probabilities what is likely to have been the case? Therefore on balance, but for the road traffic accident, for example, would the injured party have complained of back symptoms in the future and, if so, when? Or is it likely on balance that they would have remained symptom free for the future?
Therein lies the importance of looking at medical notes to ascertain the true position.
Tristan Hallam is a Principal Lawyer (Partner) in Personal Injury in the London office of Slater and Gordon Lawyers. If you or a member of your family has suffered an accident or injury call our expert personal injury solicitors on 0800 916 9046, fill in our short online enquiry form or email firstname.lastname@example.org and one of our specialist personal injury team will review your compensation claim for free.