The attitude of courts in England to compensation for post-traumatic epilepsy

The attitudes of courts in England to the assessment of damages for post-traumatic epilepsy have dramatically changed over the last 20-30 years. In assessing damages for post-traumatic epilepsy the courts are faced with a number of considerations: epilepsy can appear several years after the injury; epilepsy is not a homogeneous condition; the eventual prognosis is unknown; the epilepsy may not have been directly due to the trauma; and epilepsy affects life expectancy and employment. Damages were originally fixed at the point of compensation, and these rather crude calculations led to both over- and under-compensation. This situation was improved in 1985, when courts were permitted to award damages on the assumption that epilepsy would not occur or worsen, and further damages should these assumptions prove to be incorrect. The courts in England still depend, however, upon the evidence of expert witnesses chosen by the plaintiff and defendant. A tension thus exists between the duty of expert witnesses to the court and the understandable inclination of expert witnesses to support the party that has instructed them. The Woolf report has led to changes in the responsibilities of expert witnesses, and will hopefully remedy many of the inconsistencies and inequities that occur.