Damian Tinsley v Sakar

a . Young man gets hit on his bicycle 

I first met Damian when he was living in a Mental Hospital where he was locked up for most of the day as those who were caring for him thought he was suffering a mental illness and that if he was allowed into the community he would be dangerous and both his own safety and that of members of the community were at risk. The mental illness was said to be as a direct result of him suffering a fractured skull and brain damage in an accident when a driver had not noticed him as he negotiated a roundabout on his way home from an AA meeting. Before this dreadful accident he had been diagnosed as an alcoholic and had been off the booze for over 3 years he had trained to be a chef and was working in a hotel preparing meals.

b. The Insurer accepts responsibility.

The driver of the motor vehicle that struck Damian accepted responsibility for the accident through his Insurers who then took up the defence of the claim. An initial interim payment was obtained to help pay for a few things for Damian and allowed for a case manager to be brought in to assist Damian’s mother in trying help Damian to get back into the community if at all possible.

c, Concerns over Damian’s mental health.

When i was first introduced to Damian he was in a locked cell and was deprived his civil liberties. He was desperate to live in his own home and to get back to working as a chef but his brain injury was such that he had lost all insight into his difficulties. He had organic personality disorder which manifested itself in some sexual disinhibition and a hatred of Asian people as the driver of the car that hit him was from Pakistan. It was not an innate racism as he had been told by his mother that his Father who had left the family when he was only very young had been Italian and Damian was very proud of these Italian roots.

He seemed to me to be a troubled man who wanted to be loved and presented mentally as very much as a teenager trapped in a man in his late 20’s As such he was untidy and found it difficult to keep his room tidy and struggled with personal hygiene and needed support to maintain this area of his life. Without prompting he would spend all day in bed the brain injury meant that he was demotivated and would present as rebellious smoking incessantly and constantly wanting alcohol which if he were to have but a single pint would have the equivalent effect of numerous pints for anyone else, His behaviour would then become potentially violent and more rebellious and inappropriate so part of any care plan for him would be to reduce his access to alcohol and to try to keep him occupied in other pursuits so that he wouldn’t forever dwell on this .

Despite these problems, he was a very endearing character in many ways once he got to know you and trust you. He was a gifted artist and some of his pencil drawings and paintings were inspired. He loved music in particular the 60″s and loved John Lennon and the Beatles.

d. Our Approach to this case 

We were of the view that Damian’s needs were complex and although he did need protecting and possibly he was a risk to certain members of the population especially if he was drinking or had access to drugs but we were firmly of the view supported by our experts in the case that he needed also motivating and brain injury rehabilitation so that he could maybe one day live as he desired in his own home in the community. But we felt he did need to be in a specialist brain injury unit that would provide the best of both worlds and allow for a gradual reintegration into society with a full team of carers and professionals if this was possible and as such we argued that Damian should be placed at the ” Transitional Rehabilitation Unit ” ( TRU) run by Dr Howard Jackson based in Haydock near St Helens. I had already successfully pursued a case for another young man many years earlier with similar problems to DSamian but with his personality disorder but the same alcohol problems and his case settled on the basis that when he was at his worse he would be in the secure locked wards at the TRU, gradually moving to shared open flats and units then into his own home but run and cared for by a full brain injury support team of carers and therapist close to the TRU main campus where if he did deteriorate fir instance if he managed to secure drugs or alcohol he could be placed back into the locked wing until he was calmer and better placed to moe agian intot he saghred flts and that for the rezt of his life he would bein one of these settings but always with the TRU close by to assist if things went wrong for him. For Damian our experts felt that he had a realistic hope with the right team to eventually be in his own home away from the TRU altogether.

e. The defendant’s approach 

The insurers instructed a large London-based firm who went on to the offensive from the start as they maintained Damian was a danger to society and they wanted to force him into being kept in a secure mental hospital for the rest of his life as they would then argue the costs of this would be met by the State and this may reduce what they would have to pay in compensation. They argued that his problems were all mental health ones which would only be properly dealt with by the strict regime of a mental hospital they did not want to pay for any attempt to address the brain injury issues such as his apathy, memory problem, Lack of motivation and the organic personality disorder. They knew that if the court accepted that these were issues which were related to his brain injury and a mental hospital was not the right environment for Damian then they would have to pay for a support team, case manager and private therapists and carers to look after him which would involve not just making sure he was safe and perhaps society was safe from him but also that he had some quality of life which was in keeping with what he would have had but for the horrendous brain injury, ie he would have on balance continued to work full time and formed relationships and also had very hobbies and pastimes that make up a normal life.

f. The case proceeds 

We successfully argued with independent counsel for Damian that he should be taken off his mental health section and as such could be released into the community from the hospital care. Damian was represented by mental health counsel as he was entitled to pursue this even though our experts didn’t agree and there was grave concerns at first that once out of hospital Damian would go out get drunk and attack someone or sexually assault a woman. The psychiatrist we instructed was adamant this was a major concern of his and he said he didn’t want to be on the cover of the News of the World as being someone who had been instrumental in Damian being let out into society. The reality was that he was not a risk his behaviour although combative and rebellious at times was such that he did accept authority and the views of those who were caring for him and he developed an almost Father and Son relationship with his case manager. The other experts were in agreement that although they preferred him to be held under section there were no technical grounds for him to be kept under section.

g. The defendants refuse an interim payment 

The Insurers refused to provide any further funds to Damian they argued before the court that although he was now out of section he would soon prove to be incapable of living in the community. They argued he would always need mental health services to intervene and as such, they said the costs would be met by the state and at trial the value of the claim would then be only as much as 100k.

The Judge who heard the application and the Court of Appeal agreed with their arguments and as such Damian had nowhere to go he couldn’t afford a place at the TRU, his Mother could not look after him and there were no funds for a full brain injury case management package or carers and therapists etc. Damian had to agree to stay in the hospital as a last resort as the full trial of his case approached but he was free to come and go and the hospital could not detain him .He was lucky that  one of the carers at the hospital he bonded with and who was able to keep an eye on him but we could not do anything to help him. The defence were hoping .as predicted by all the experts in the case,that  without supervision and guidance he would prove to be a danger to himself and perhaps others and would soon be resectioned just in time for the trial where they could then argue to the Trial Judge this was where he would always be at the expense of the state and therefore they would not have to pay large levels of compensation and they would avoid the lion share of responsibility for this young man even though it was their insured, the driver of the car that hit him, that had caused the brain damage and left him in the state he was in now and for the future.

f. Case nearly collapses.

As the case approached trial I was faced with two incidents which potentially could have had devastating blows on the case. The first involved Damian himself …he had been remarkable compliant and had kept out of any trouble or mischief for about 3 months following the release form section the trial was only 3 months away and he chose to go out one night to his local pub. He went to the toilet close to last orders and then hid. When the pub had closed up for the night he snuck out of the toilets and drank every optic dry and was found by the landlord the next day spread-eagled on the floor of the pub comatose. The local police were called and for a moment the threat of resection was imminent but the landlord was somewhat understanding once he knew Damian’s history and the police let him off with a caution once they knew he was a resident at the local mental hospital and that his case was about to go to trial .

No sooner had we over come this hurdle then I was presented with a major problem my Leading Counsel who had assisted on the case none other than the then head of the Northen Circuit of Judges pulled out of the case saying he was double booked on another matter so at the 11th hour I had to instruct a new counsel . He has been mentioned in my website before as Winston Hunter QC who took over this complex case right at the end and took the case to trial.

g. The Trial and conclusion

The case commenced a full 10 day trial before HHJ Leveson QC in Manchester and we made a tactical decision to call Damian to give evidence to let him have his moment in court and without prompting or a script he simply and calmly explained his case to the Judge and how the brain injury had taken away his life. There was not a dry eye in the court hearing his statement the defence chose not to cross-examine him and we commenced with experts for both parties. Even at this very late moment in the case during the trial itself the defence were once again proving to be very difficult and underhand .They realised that the Judge was sympathetic to Damian and the fact he had real brain injury issues and despite calling a host of witnesses on day 2 to show what mental hospitals and similar such placements were available for Damian they sent out all of their experts to a brain injury unit Redford Court in Liverpool and presented to us a completely new case on day 3 stating they would now wish to argue Damian should be placed at this unit and not any of their previous hospitals and not our case of the TRU….!

We were faced with a dilemma we could legitimately argue all of this new evidence should not be permitted at this late stage in which case there was a risk the trail would have to be adjourned whilst we considered everything but this would mean Damian having to once again wait whilst he was voluntarily staying at the psychiatric hospital with all the risks he could again do something which may trigger him being resectioned. In the end ,we decided to fight on and let the defence present a new case based on this report. What was interesting was that the defence successfully argued that Redford Court was the best placement on balance for Damian which the Judge accepted but in doing so we won the argument it was brain injury rehabilitation and treatment that Damian needed not just being placed in a safe environment due to his mental health issues and the costs of staying at either placement were virtually the same.

The final argument was then deiced by the Judge as to who should pay for the life long costs of this and despite the fact that Damian was entitled to receive continuing assistance for his mental health care the Judge accepted the costs of the reasonable needs for Damian including the costs of a unit such as Redford court should be met by the insurer and Damian was awarded 3.5 million pounds to cover the fact he would never work again , her would always need the care and help of a trained team dealing with all of his issues and his would need a financial deputy to look after his monies.