Simon Wheatley looks at why spinal injuries are different
The body is a combination of its parts, including the brain, skeleton and internal organs. When it comes to the quantification of damage we tend to concentrate on a specific element of the body. The small handbook Judicial College Guidelines for the Assessment of General Damages encourages that focus, by segregating the body into distinct portions, and then providing a bracket of financial compensation for each area of the body.
This is a simplistic approach to quantification, since not only do most injuries involve multiple ‘zones’, but there are likely to be overlaps between mental anguish and physical loss.
The spine, though, represents a particularly sensitive area of the body, rendering the bracket system virtually meaningless. Whereas the loss of sight in one eye is valued by the guidelines in a relatively narrow band of £39,820 to £44,330, and the amputation of an arm (above the elbow) ranges from £88,660 to £105,875, damages to the spine vary in damages from £1,500 to over £326,000.
What then is different about spinal injuries?
First, the spine has traditionally represented something more than a mere body part. Consider these words from Herman Melville:
“I believe that much of a man’s character will be found betokened in his backbone. I would rather feel your spine than your skull, whoever you are. A thin joist of a spine never yet upheld a full and noble soul. I rejoice in my spine, as in the firm audacious staff of that flag which I fling half out to the world.”
That view may now be regarded overly heroic and outmoded, were it not for the fact the absence of a spine is still categorised as ‘spineless’. And the term is of course, generally defined as weak and purposeless. And many people still believe their emotional response to an event is felt in the spine. Not only do they feel their hackles rising (erectile hairs along an animal’s back, which rise when it is angry or alarmed); but they obtain sensations of pleasure or fear by watching a ‘spine chiller’.
What’s more, until the abolition of the death penalty in 1964, the state authorised judicial execution to be carried out by hanging. The mechanism was a forcible hyperextension of the head, usually with distraction of the neck leading to a fracture at the level of second vertebra of the cervical – the hangman’s fracture. This is same mechanism which operates to cause damage, though not usually lethal, in the majority of whiplash injuries.
Thus, traditionally, we regarded our spines as an embodiment of rectitude (uprightness) and sensitivity.
An arm does not naturally degenerate, but the orthopaedic surgeons tell us that spontaneous degeneration of the spine is an unavoidable concomitant of the aging process. Most people are unaware of this taking place since the loss of any mobility is usually gradual.
Consider then an average 55 year old employee. They consider themselves to healthy, happy and well-motivated. They are in employment, and can do the household chores, the gardening and the DIY. They sustain an accident that results in injury to their back. Suddenly, they are in disabling pain. It gets a bit better over a period of two years, but then they are left with constant and unremitting back pain.
If there is a claim for compensation it is likely a spinal MRI scan will be carried out, and then begins the eternal argument over the consequences of degeneration.
The defendant’s orthopaedic surgeon notices some narrowing of the disc spaces and suggests that full prolapse would have occurred within five years of the accident. The claimant’s expert disagrees, and, having studied the velocities involved in the collision or accident, suggests these are so unlikely to have been reproduced in normal life that the claimant would not have suffered spontaneous injury in the absence of the accident.
An invisible form of injury
If there are no spinal fractures but only a soft-tissue injury there may be no evidence of damage beyond the pain experienced by the claimant. Not only is there an absence of a subjective proof of pain, but many patients find they are forced to manage their pain. They avoid stressors. They avoid exercise or lifting weights. This avoidance mechanism leads to a sense of increased loss, since the claimant inevitably remembers a previously carefree life which the back pain has destroyed.
Thus, for the various reasons considered above the valuation of damage in a spinal injury is a complicated process. Reference to the compensation brackets are unlikely to assist, but an understanding of all that the claimant has lost is more likely to help you establish the true measure of damages.
Simon Wheatley is a barrister at 7BR Chambers. Simon recently presented on this topic as part of 7BR’s Skeleton Series, a series of six medico-legal seminars. The article has been published in Claims Magazine as well.