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Pre-Existing Conditions and Personal Injury Claims
We live in a society where people are living longer, and more and more individuals are living with a long-term condition – conditions that typically have no cure. Unsurprisingly, the likelihood of developing a long-term condition or disability increases with age, making it a major issue for governments and health and social care providers – who already have limited resources.
In fact, in 2015 more than a third of adults said they had a long-standing illness or disability, and a fifth reported having a limited one.
Having a pre-existing injury or condition, such as a degenerative muscle condition, asthma or high blood pressure, means that if you come down with another illness or have an accident, you are likely to be more vulnerable to further injury. The pre-existing condition or injury may also be prone to being exacerbated by the accident. Your pre-existing condition could even be a psychiatric disorder.
Put simply, an accident or injury can have greater consequences for someone with a pre-existing condition, than for someone who doesn’t have one. A minor car accident or a trip in the supermarket may make little difference to one person, but could have a major impact on the life of someone already struggling with a condition or existing injury. The victim may find it difficult, following their injury, to continue in their work and earn a wage; they may find that their normal household responsibilities have become impossible, and their availability to access suitable housing can become severely curtailed.
Liability where there is a pre-existing condition
If you are injured through no fault or your own, and the accident or incident was caused by someone else’s negligence or mistake, you can claim for personal injury compensation. But what if your pre-existing injury or condition worsens as a result of your injuries, and what if the injury itself is worse because of your pre-existing condition?
The so called ‘eggshell skull’ rule applies to these types of cases, a rule that is also defined as ‘you take your victim as you find them’. This is a clear legal principle that places liability on the person responsible for the accident, for the resulting injuries even where the injuries are worse than they might otherwise have been, were it not for the pre-existing condition or injury.
If, for instance, the victim has osteoporosis and is involved in a car accident, they may break a limb. However, if they did not have osteoporosis (or another similar condition) they may well have not broken a limb in the accident – that is immaterial. The defendant must take their victim as they find them: they are therefore, liable for the full extent of the injuries.
The law is also clear that if your pre-existing condition is made worse or exacerbated by an injury, you should be able to claim compensation for this, as well as the injury itself. So if you have a pre-existing heart condition, and you trip on an obstruction in the supermarket, or slip on a split drink in a restaurant – and you suffer a heart attack – you can claim injury compensation for the actual injuries and the heart attack itself.
Making a claim for injury compensation with a pre-existing condition
Although the law is clear that you can claim compensation in respect of injuries that are more serious because of a pre-existing condition (and if your existing condition or injury is exacerbated), proving it may not be quite so simple.
First, you will have to show – as in all personal injury claims – that someone else was negligent and that your primary injury was caused as a direct result of their negligence. You will also have to prove the extent to which the accident worsened or exacerbated your pre-existing injury/condition.
It is vital that you see a doctor as soon as possible to ensure there are medical records from early on. You will also need to undergo expert medical assessment with a specialist doctor. This will be particularly important if you need to prove that your pre-existing condition has worsened as a direct result of the accident. A complicating factor is the time element: it can take a potentially long period of time before the impact of the accident or injury on your condition becomes apparent.
Given that you should start your claim within three years of the accident, it is important to start your claim within this limitation period, although your claim can effectively be ‘stayed’ (ie. put on hold) for various reasons, for instance, to allow the parties to reach a settlement, or to enable certain steps of the required court procedure to be complied with.
That said, in some cases you may not know you have a potential injury claim until the time it becomes apparent that an earlier accident or incident has had an adverse effect on your pre-existing condition. In these circumstances, the three-year period does not start to run until you become aware that the accident did, or is likely to have worsened the condition. The potential problem which then arises is proving the link between the accident and the worsening of your condition with the passage of time. Specialist legal advice is vital.
If you or someone close to you has been injured, but have a pre-existing condition or injury – don’t think you cannot make an injury compensation claim. Speak to a personal injury lawyer about pursuing compensation as early as possible. We work on a no win no fee basis, which means there is little risk financially to starting a claim.