Brain and head injury compensation claims

“They’re fabulous. They’re very professional but also very personable and responsive. They make my life a lot easier!” – Chambers & Partners 2017

Specialist brain and head injury solicitors

Our specialist brain and head injury solicitors have decades of experience of acting for and working with those who have suffered head injuries.

In addition, our specialist team of medical negligence solicitors have a history of representing those who suffer brain damage as a result of negligent medical treatment.

Our partners and team members are actively involved in the brain injury community.

• Martin Pettingell is Chairman of Headway Somerset.
• Chris Thorne is Chair of Headway Devon.
• Philip Edwards is a former Director, Chairman and Honorary President of Headway North Worcestershire.
• Lee Hart and Phil Edwards are Association of Personal Injury Lawyers accredited brain injury specialists.

Headway, the brain injury association, features Clarke Willmott as specialist solicitors in handling brain injury cases for the South West (Bristol and Taunton) and the West Midlands (Birmingham).

Clarke Willmott’s serious injury team are ranked as band 1 by Chambers & Partners legal directory for Bristol and surrounds, and Somerset. Philip Edwards is ranked Band 1 for Birmingham and surrounds.

We represent brain and head and injury clients nationwide from our seven offices: Birmingham, Bristol, Cardiff, London, Manchester, Southampton and Taunton.

We are supporters of Meningitis Research Foundation and the Encephalitis Society.

Contents

Types of brain injury

Headway UK estimate about 1 million people will visit A&E annually following a head injury. Thankfully the majority of these have no long lasting effects.

Some unfortunately are left with brain damage.

Acquired brain injury (ABI) is defined as brain damage sustained after birth.

Traumatic brain injury (TBI) is defined as an injury to the brain caused by trauma to the head (not of a congenital or degenerative nature).

There are three categories of severity of traumatic brain injury:

1. Mild traumatic brain injury. Symptoms include loss of consciousness for less than 30 minutes. Initial Glasgow Coma Score of 13-15. Post traumatic amnesia of less than 24 hours.
2. Moderate traumatic brain injury. Loss of consciousness of 30 minutes to 24 hours. An initial Glasgow Coma Score of 9-12. Post traumatic amnesia from 24 hours to seven days.
3. Severe traumatic brain injury. Loss of consciousness greater than 24 hours. Initial Glasgow Coma Score of 3-8 and post traumatic amnesia of greater than seven days.

The severity of the injury is a useful starting point, but the effects of brain injury can be very different from person to person, and our expert lawyers will work hard to assess the effects on you as an individual.

Causes of brain injury

These are varied and multiple. Our experience of acting for children and adults who have suffered brain injuries include those sustained:

• At work
• Motorbike and bike accidents
• Out and about
• In accidents involving horses
• In car crashes and road traffic accidents
• In accidents at home
• Assaults

In addition our medical negligence team have represented adults and children who have suffered brain injuries as a result of negligent medical treatment of:

• Meningitis
• Encephalitis
• Pregnancy and birth injuries
• Surgical error

How you might be affected

No two brain injuries are the same. Common symptoms which may be present after a traumatic brain injury, short term or life-long include:

Other symptoms can include:

Rehabilitation

It is generally accepted that the first two years following a brain injury is the optimum time period to benefit from rehabilitation.

Although initial medical care for a brain injury is free to UK residents, on-going specialist brain injury rehabilitation, which is vital in achieving the best possible outcome following discharge from hospital, is often not available without cost.

Many individuals and families experience a significant reduction in NHS care and input once they have left hospital after an initial period of intense treatment.

It is important that suitable rehabilitation is privately funded as soon as possible in these circumstances. This can involve a range of rehabilitation experts to include:

The severity of the injury will often determine the duration and range of rehabilitation necessary.

Specialist brain injury solicitors will focus on the provision of suitable rehabilitation at a very early stage and use the litigation process to meet the cost of this on a private basis from the outset.

The provision of an environment that enables the individual to maximise their recovery can have significant benefits for the long term.

We may arrange to appoint a case manager to coordinate on-going rehabilitation and to ensure that it is adapted to meet your continuing needs.

Types of compensation

Assessing financial loss and expense

As a result of the long periods of rehabilitation and recovery from brain injury it is often difficult to calculate the amount of compensation, to be claimed for, until some time after the accident.

Where for example the injured person cannot work, there may be an immediate loss of income. Often this occurs at the time of extra outgoings to cover travel, medical expenses, childcare etc.

Where possible we will obtain an interim payment which is an advance of compensation to meet financial needs. Often several such advance payments can be secured as the case progresses.

When the medical evidence is finalised it is generally possible to identify the losses and expenses to include in the compensation claim. These will often include such things as:

This is not an exhaustive list an there can be many additional injury claims arising depending on the circumstances.

The litigation process

Compensation claims for brain and head injury can take a few to many years to conclude.

When a child suffers a head or brain injury it is often very difficult for the paediatricians to be clear about the effect of the injury and whether the child will recover. Children develop at different rates and therefore assessing what is normal as opposed to what might have been caused by an injury requires special skill and expertise.

Furthermore, the effect of a head injury may become more severe or obvious as the child grows up and differences between themselves and their uninjured peer group emerge. This is particularly the case as children enter their teenage years with all the perfectly normal struggles they bring.

Head and brain injury claims involving children may conclude at any time between the early teens and early twenties, depending on the circumstances of the individual. Until that age is reached the medical experts, appointed for the purpose of the legal proceedings, will not be able to give a final opinion, which will be acceptable to the Court.

The Court has to approve all the settlement terms of cases involving those who lack mental capacity.

• The first step in every case is to determine if a case can be successfully pursued either against an individual or organisation that is at least partially responsible for the accident, or from the Criminal Injuries Compensation Authority (CICA) for blameless victims of violent crime.
• Even where you cannot remember the accident or incident that led to your brain injury, or you do not have much information about it, our expert lawyers can investigate for you. This can involve obtaining a police report for accidents on the road, or Health & Safety Executive documents for accidents at work. In clinical negligence cases your medical records will be carefully considered. We may ask independent experts like Accident Reconstruction Experts or Forensic Engineers to assist in seeking to establish who was to blame.
• We have to prove that the brain injury and its consequences were at least partially caused by the incident concerned, be that an accident, assault or negligent medical treatment.
• Assessment of your injuries and needs by independent medical experts (whose primary duty is to the Court), both before and after rehabilitation.
• Generally the first report will be from an expert in neurological rehabilitation. Thereafter experts in the fields of neurology, neuropsychology and orthopaedic surgery will often be called upon. Other experts may be instructed, for example to deal with loss of eye sight, hearing, care and accommodation. At times it may be necessary for the medical experts to prepare more than one report.
• The aim of the reports is to provide the Court with evidence of the brain injury and its consequences on the injured party. The reports will also be used to help determine the losses and expenses the injured individual has incurred or will have in the future.
• Calculation of the value of your claim. This will be calculated on the basis of the evidence obtained from you, those close to you and from appointed experts in your case. This evidence and your financial losses and expenses, past and future, will be calculated by us and a specialist barrister appointed by us. You and/or your representatives will be fully involved in this process.
• Conclusion of your compensation claim. This will be by negotiation or Court Order following a Trial and Court assessment of the value of your case. The vast majority of cases (over 95%) do settle. We will work hard to try to settle your case without the need for going to Court and we are experts in negotiation. If negotiations fail to result in a reasonable offer to settle your claim, then we will fight your case at Court to make sure you get the right amount of compensation.

Time limits for pursuing a claim – limitation

The usual rule is that Court Proceedings must be started within three years from the date of the accident/incident. This is often referred to as the limitation period. There are important exceptions to this three year time period:

• If you lack mental capacity. Expert evidence is required to prove this. In this situation there is no time limit. It is important to add that with the passage of time cases can get harder to prove. It is important to instruct a specialist solicitor as soon as possible in all cases.
• The three year limitation period starts to run once the child turns 18. Therefore you have until age 21, subject to the passage of time issue detailed in the bullet point above, to formally initiate a claim.
• Criminal assaults and Criminal Injuries Compensation Authority claims. The time limit is usually two years subject to the stipulation that claims must be made as soon as possible for CICA claims.
• Accidents abroad. These vary from country to country. Some time limits are very short.

How can we help?

At the earliest opportunity, if appropriate, we will:

• Visit you at home, or at hospital to meet you and your family and offer advice as appropriate. You can then decide if you want to instruct us or not. This meeting is free of charge.
• Arrange for an assessment of your immediate rehabilitation needs if appropriate.
• Obtain interim payments to meet your immediate financial and rehabilitation needs.
• Appoint a case manager to seek to ensure that all NHS and private medical and rehabilitation assistance is made available to you at the earliest opportunity.
• Liaise with you and your family/appointed representative thoroughly and promptly throughout our involvement, to seek to ensure that you are properly cared for and fully compensated.

How much will you cost me?

Most of the cases we handle are dealt with under a Conditional Fee Agreement (“No Win, No Fee”) which will be at no financial risk to you.

When we meet you we will discuss the various options available for funding your legal costs and explain these to you as well as advising what the best funding method is for you.

Some of the options are:

• Conditional Fee Agreement – the success fee is likely to be zero in the event of a claim brought on behalf of a child.
• Legal Expense Insurance – we will investigate if you have this and use it where possible. On a complex case, like a brain injury claim, if your legal expense insurers try to restrict your choice of solicitor we will arrange alternative funding.
• Damages Based Agreement – these are appropriate where legal costs cannot be recovered from the defendant/compensator. This is the case with Criminal Injuries Compensation Authority (CICA) claims in respect of crimes of violence and claims for compensation to the Motor Insurers Bureau (MIB) under the Untraced Driver’s Agreement.

Not all solicitors offer the same funding arrangements. Success Fees, that in certain circumstances are payable out of your damages, can differ significantly from one law firm to another. If your solicitors are proposing a success fee that you have concerns about you are free to consult other specialists to see if they will take a different approach to the level of the success fee. It is your case. You can instruct who you want.

Support after head injury

Clarke Willmott has a complete range of expert lawyers who can assist you with other matters that can arise because of your brain injury.

• Court of Protection team – we have a dedicated team with a long history of supporting those who are unable to manage their own affairs.
• Personal Injury Trusts
• Wills, Trusts, Probate and Estates
• Welfare Disputes
• Judicial Review – review of health service providers and central and local government concerning delivery of health and social care services.
• Family and relationship issues

Head and brain injury training events

We organise training days for those working in the brain and head injury field. In the past these have been organised in conjunction with the Encephalitis Society, as well as a Paediatric Brain Injury training day in conjunction with 12 King’s Bench Walk and Meningitis Research Foundation.

Contact one of our brain and head injury solicitors

If you need legal advice about making a compensation claim call us now on 0800 316 8892 or contact us online.

We pride ourselves on our specialist expertise and client care – read what our clients say about us.

For more information, read five reasons to choose Clarke Willmott as your injury or medical negligence solicitor.

Useful links to organisations that can provide support

• Headwise
• The Disabilities Trust
• Brain and Spine Foundation
• British Association of Brain Injury Case Managers