Legal question about personal injury claim - the "eggshell/thin" skull rule

[stressed2007]

I was wondering if someone could help me regarding a legal issue (regarding personal injury) my friend has ? it is has something to do with what is known as the ?EGGSHELL SKULL? rule (en.wikipedia.org/wiki/Eggshell_skull) which is basically the principle that you take a person as you find them but I have a question regarding its application.

My friend was involved in a car crash (not his fault). He has been in a lot of pain since the accident with his back (he has been bed ridden for significant periods of time) and 20 months later has not recovered. A personal injury claim is still pending. However one expert he saw highlighted the fact that he had a back condition approximately 8 years earlier and thinks the crash merely accelerated what he thinks would have been a re-occuring condition (even though he has no interim problems with his back at all before the accident) and has only accelerated the back condition now. He thinks the accident accelerated the pain he is now in by between 12-24 months. Therefore the solicitor who is acting for him is only claiming for a maximum of 24 months of costs despite the fact that my friend is no where near recovered.

My question is that surely this legal principle states that you take the victim as you find them therefore on my understanding it should make no difference as to what extent the accident accelerated the pain (be it 5 days or 5 months etc). Rather it should be that my friend had a propensity for a bad back and the accident triggered this off and that even if it takes 5 years for him to recover that should be what is claimed for and not the 12-24 months that the injury was accelerated.

Any legal experts out there with a view on this? Here?s hoping, Thanks

Anyone?

the basis on which compensation is awarded is to put the victim in the position as if the accident had not happened (obviously, insofar as money is able to do this)

so if the accident had not happened your friend would have had 12 - 24 pain-free months and then x months of back pain due to his existing condition.

the difference made by the accident is the 12- 24 months

iheartdusty would be right IF the expert is correct. but it sounds as though you have doubts over that, ie you've said "what he thinks would have been a re-occuring condition (even though he has no interim problems with his back at all before the accident) ".

I think that is the issue. Is this HIS expert or the other side's? If it is yours, might it be worth getting another expert report OR in the first instance challenging that section of his report and seeing if he will either retract or put his report in the alternative. ie for him to say "if this would have been a re-occurring condition then we are looking at 12 - 24 months acceleration, if it was not then it is 5 years (or whatever) and in my view it is y% likely to be the former" (or whatever he is happy to say).

In that case you might at least get damages calculated on a (say)60% chance of it being only 12 - 24months and (say) 40% chance of it being 5 yrs worth.

Anyway. The problem is with the experts report and not your solicitor per se, IMO

eggshell skull = as you say you take someone as you find them. So, if they have for example a condition which means their bones fracture easily, they recover damages for the fracture sustained even those most people would not have suffered such serious injury. Acceleration applies where someone has a condition which would have caused symptoms eventually, but the accident has caused them to manifest sooner than they would otherwise. Many back problems are degenerative, that is there are changes which gradually occur and eventually start causing symptoms; either slowly or suddenly (some people slip a disc bending to pick up something off the floor). If 2 doctors say different things; there is often scope for a compromise. The reason is that the 1st person would not have had a fracture if the accident had not occurred, but the 2nd would have suffered with back problems in any event. Hope this is comprehensible!

iheartdusty would be right IF the expert is correct. but it sounds as though you have doubts over that, ie you've said "what he thinks would have been a re-occuring condition (even though he has no interim problems with his back at all before the accident) ".

I think that is the issue. Is this HIS expert or the other side's? If it is yours, might it be worth getting another expert report OR in the first instance challenging that section of his report and seeing if he will either retract or put his report in the alternative. ie for him to say "if this would have been a re-occurring condition then we are looking at 12 - 24 months acceleration, if it was not then it is 5 years (or whatever) and in my view it is y% likely to be the former" (or whatever he is happy to say).

In that case you might at least get damages calculated on a (say)60% chance of it being only 12 - 24months and (say) 40% chance of it being 5 yrs worth.

Anyway. The problem is with the experts report and not your solicitor per se, IMO

Princesspeahead you sound very knowledgeable - are you in the legal world? Great advice I am going to suggest he revert with this - it has got to improve the chance of the claim

Thanks Claremal - it sort of makes sense. In this case it is degenerative (as you say most back conditins are) however my friend was asymptomatic for 8 years so I cannot understand how a doctor can say they suspect it would have happened anyway when there has been no interim condition.