I had a fairly weird accident and liability was a big fight with really bizarre accident circumstances.

A loose horse was on a quiet country road, having pushed through rotten fences. The horse panicked and as I was braking my bike folded up underneath me and I landed hard on my head.

The horse legged it and by hard work from my local police, the horse was traced, and all sorts of issues were raised because the horse was caught by its owner and quietly returned to its stable.

My on-board camera captured a distinct ‘freeze mark’ on the horse and from that a very interested copper tracked the horse through an insurance database. I had some relatively minor physical injuries but my head took the full brunt of my 14-stone body landing on my head. I was knocked out for a short period.

For about 18 months I was just plain weird. I was forgetful, short tempered and angry. I do a highly skilled job and I was taken off my front-line role because I was making odd decisions.

I seem to be getting better, but unfortunately my solicitor seems to have no idea how to value this element of my claim. The second thing which worries me is that I must drive for my job. I work as a riot trained prison officer and I fairly frequently drive a blue lighted van.

The neurologist my solicitor has sent me to has said that I have got a risk of epilepsy which will go down to the ordinary background population level over the course of the next 10 years, but for the moment my risk is doubled and my job can and does involve tough and occasionally brutal pbysical confrontation and I have been kicked in the head by prisoners before now.

If I have any kind of seizure, my job is over. My solicitor seems completely baffled as to how I should get compensation for that. Could you point me, and probably him, in the right direction? I don’t want to change solicitors: they were rock solid in supporting me but they seem a bit out of their depth now we need to value the case.


I can help. I mould not necessarily expect a non-speclallst solicitor to recognise the symptoms of post-concusslon syndrome,
but you are a classic case.

This is really common for motorcyclists, whose helmets prevent serious brain injuries but have mild traumatic brain injuries, which is what you have got. Having read the background to your case, while your solicitors might not be on top of the injuries, they mere very determined and skilled In nailing liability, which was the difficult part of your case.

I see that the horse owner denied omnership or the ‘keeping’ of the horse captured by your on-board camera, and your solicitors were up for the courtroom fight. Good on them. This is a complex area of law, the Act which governs it is probably the worst-written Act of Parliament I have ever come across and the Supreme Court agrees mith me!

Where there has been a short period of unconsciousness caused by trauma, exacerbated by worry and the stress of litigation (and it did take some time for liability to be dealt with in your case as this was a more complex than usual case) one of the common consequences is the cluster of symptoms you describe. The spontaneous recovery is also fairly typical.

I am disappointed that the neurologist does not appear to have considered post-concussion syndrome, I know there was some debate about 15 years ago whether or not this post-concussion syndrome was a real thing, or something dreamt up by nasty litigation lawyers in their busy day of chasing ambulances, but a big clinical trial in which a couple of my own clients were involved back in the early 2000s clearly demonstrated that post-concussion syndrome is a real thing. You need a neuropsychologlst to examine you. They are expensive and I note the neurologist says you need such an assessment. A typical award for largely resolved post-concussion syndrome is between £20,000 and £30,000. Yours, I suspect, will be to the lower end.

The second element is your risk of developing epilepsy. There are two solutions to this. The obvious legal solution is an award of provisional damages. The court will set an award based on you not developing epilepsy, and holding your case open, typically in a case like yours, for some 10 years, and if you do not develop epilepsy or have a seizure in that 10 years, then your case just naturally dies.

If you do have a seizure within the 10-year period the court might allow, then you can reopen your case and have it concluded on the basis of you having developed seizures and, in all probability, losing your job.

Insurers absolutely hate provisional damages. This is because they cannot close the case and they have to ‘earmark’ real money to pay off the relatively small risk of you coming back in the event of you having a seizure.

The second option is that the Insurers buy off the risk. I very recently concluded a case on very similar facts to yours, at least insofar as the epilepsy risk was concerned, and by agreement the injured rider, for whom riding was essential for his profession, took the equivalent of two years’ take-home pay to give up his right to come back for more money.

That was a deal, rather than any legal principle. Provisional damages are relatively rare, and in my experience the courts are more reluctant to award provisional damages than they were back in the early days of provisional damages at the turn of the millennium.

Your risk is relatively low, but a fit for you would be disastrous, and if your case were to push on to trial I suspect most judges would be sympathetic to a provisional damages award but I certainly wouldn’t guarantee it.

Andrew Dalton

Fast Bikes November 2020