State of the art prosthetics providing real progress in personal injury claims
For those unfortunate enough to have sustained such serious injuries, there may at least be a brighter future to look forward to, says Bruce Goodbrand
Many personal injury practitioners will be familiar with a famous illustration from a magazine article in the 1890s. It shows silhouettes of amputees, and the various levels of compensation that could be expected at that time for lost limbs.
Awards ranged from £210 for a below knee amputation of one leg, to £1000 for losing both legs above the knee. The author even had the temerity to suggest claimants could make a “handsome” profit, since the cost of replacement limbs was much lower than the compensation. Mercifully, times have moved on, both in terms of the levels of compensation that can be expected, and the attitudes of those involved today.
The guiding principle in damages is “restitutio in integrum”, or “restoration to the original condition”. Clearly that cannot be achieved where a limb is missing, but medical science means we can now get closer than ever before.
There have been two developments in this field in recent years that are significant. Firstly, there have been exponential advance sin the prosthetics themselves, partly driven by the horrific injuries suffered in the Iraq and Afghanistan conflicts of recent decades. Artificial limbs are no longer just simple constructs to bear weight or provide cosmetic benefit. They are now an array of finely engineered bespoke equipment, which can restore function to levels that were previously unimaginable. developments such asosseo integration( a structural and functional connectionbetween living bone and a load bearing surface) have opened up a world of possibility.
Secondly, leading insurers have recognised the value of early engagement with claimant’s representatives to provide support. Provision of state of the art prosthetics, with a fully funded support programme, typically yields a better outcome in terms of potential future employment and care requirements etc.t hat in turn limits long term cost.Fo rt heun for tunate claimant who has lost a leg or an arm, the primary consideration is how good a level of mobility and function they can recover. Proactivity and a tailored rehabilitation programme will almost certainly give better results than the alternatives. In prosthetics, one size does not fit all.
The results can be astounding. In one case our firm was involved with, a young man who suffered an above knee amputation was placed on such a programme within weeks of the index accident. with support and a fully funded programme a suitable prosthetic was identified and customised. After a few short months he was walking. Shortly after that he had progressed to running, then cycling, and the whole claim was capable of resolution much faster than might otherwise have been the case.
In all of this the key factor is the requirements of the individual, as shown in the leading case of Wagner v Grant & Arla Foods [2015] CSOH 51. The case involved a 24 year-old motorcyclist who suffered a below knee amputation. l or dui st ruled that the guiding principle in assessing damages would be what was“reasonably necessary ”. a proposed“Rolls Royce” arrangement that had not even been trialled was held not to be a reasonable basis on which to award damages. The converse would also undoubtedly apply. And herein lies the point. When assessing damages for prosthetics a court will wish to know what is suitable for a given individual, with an evidence based approach.
When one thinks back to the attitudesand values of the1890s, clearly some things do change for the better. Developments in this field continue a pace, along with the willingnessof insurers to engage early. For those unfortunate enough to have sustained such serious injuries,there may at least bea bright er future to look forward to.
Bruce Goodbrand is a partner in Clyde & Co, based in their Edinburgh office and Chair of the Forum of Insurance lawyers (FOIL) Scotland