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Bringing a brain injury claim

For most people (and their families), suffering a brain injury which results in long term changes and/or limitations takes a long time to come to terms with, understand and adapt to.

For an individual struggling to adapt to the effects of a brain injury and regain as much of their pre injury lifestyle as possible, that in itself takes significant time and energy and often the thought of adding something else to cope with, such as litigation, into the mix feels daunting. Add to that the perception of some personal injury claimants and their motives and credibility and people are often reluctant to even consider going down this route.

However for an individual who has suffered a brain injury and is likely to suffer long term effects it is important that they know what might be achieved through a claim if that injury has been caused or contributed to by a third party. That third party may be another road user, an employer, a contractor or even a medical practitioner but if they have acted in a way that put either the individual and/or a class of people at foreseeable risk of injury then they may have liability for the injuries sustained as a result and in most cases will have insurance in place to cover such eventuality.

If therefore there is a third party at fault who has insurance, the thing that any potential Claimant would want to know is “what would I achieve / gain?”. Whilst ultimately a claim cannot undo an injury and can only generate money, what the damages recovered can be used for can make a big difference. Examples of heads of loss that can be claimed / recovered that can make a real difference are as follows:

  • Post acute brain injury care provision in the NHS, identification and recruitment privately of a specialist neuro rehabilitation team to work with the injured person to maximise their function and independence. This could include any or all of a neuro occupational therapist, neuro physiotherapist, a neuro psychologist, speech and language therapist and potentially other professionals
  • Appointment of a specialist brain injury case manager to provide advice and support and also to coordinate and access / identify / recruit medical follow up, the rehabilitation team and day to day care and support
  • Employment of care and assistance – be that personal and/or domestic assistance
  • Appointment of a Deputy to manage and protect the individual’s finances
  • Purchase / rental / adaptation of suitable accommodation or alternatively funding for a suitable private neuro rehabilitation residential unit
  • Purchase of key items of equipment – ranging from adapted vehicles to specialist wheelchairs / buggies / scooters to useful items around the house and equipment to assist with sporting and leisure activities
  • Reimbursement of loss of earnings – past and future
  • Follow up medical care in the private sector to allow choice and flexibility
  • Vocational rehabilitation and support to help you get back to work

The key thing is that a successful brain injury claim will enable access to those with experience of working with and supporting those with brain injury with a view to maximising recovery and independence – and that specialist knowledge and support can make a huge difference.

Frequently asked questions on bringing a brain injury claim

Below are some of the concerns / questions that people have when considering whether or not to bring a brain injury claim.

Is there a time limit for bringing a brain injury claim?

The general rule is that an individual has 3 years from the date of accident or injury to issue court proceedings – so a case needs to be investigated and ready to pursue by that stage. However that 3 year period does not apply to those who lack mental capacity to litigate (i.e. those with serious brain injury) or to children until they reach the age of 18.

Looking into a claim some way down the line after injury is therefore usually possible. However there are advantages of looking into a claim sooner rather than later – the early access to specialist rehabilitation and support and, if it is a case where liability is likely to be disputed, early collection of evidence in support

Can someone help me bring a brain injury claim?

Individuals who have mental capacity to manage their litigation but don’t feel able to manage can ask for a friend or family to assist with or deal with the case on their behalf – informally or more formally when needed. For those who lack capacity and children a Litigation Friend (and often a Deputy) will act on their behalf.

How long does a claim for brain injury take?

Every case is different and the key determining factors as to how long a case will take are to what extent the other side dispute some or all of the case and how long it takes to be able to assess the injured person’s long term prognosis and needs. In most cases it is likely to be a minimum of two years from start to conclusion and it is often longer. However, in cases where liability is clear cut / accepted early there is usually scope to obtain interim payments of damages to fund things / assist in the interim.

What compensation can I claim for a brain injury?

There are two main types of compensation “damages” that you can claim.

General damages can be claimed for pain and suffering caused by the accident and for the impact of the injury on your day-to-day life. The value of this aspect of the claim is assessed mainly on evidence obtained from independent medical experts about the nature and impact of your injuries and your future prognosis but also on your evidence.

Special damages can be claimed for expenses such as loss of earnings, the cost of care, travel expenses and medical expenses incurred because of the accident. Special damages cover the financial losses sustained already and also any likely future financial losses. Part of our role is to investigate any future losses which you may sustain so that you can be compensated for them. Again, this is largely based on expert evidence on losses arising from your injuries but will cover things such as future care, support and medical needs, long term accommodation, transport and equipment requirements, additional sundry costs you will incur and long term loss of earnings and pension loss (where applicable).

If I claim compensation for a brain injury, will I have to pay anything?

These days most cases are run under a Conditional Fee Agreement (No Win No Fee). Practice varies between firms but in most cases you should not have to pay anything unless and until you win your claim – but there are then some deductions from damages. Your solicitor will be able to discuss the specific terms that they will offer.

Does it matter what solicitors I use for a brain injury claim?

It is important that you instruct solicitors familiar with dealing with cases involving brain injury. They will have an understanding of the issues you face but also knowledge of and access to the specialists that you need and will know what you could and should be claiming and how to assess your long term needs. The Brain Injury Group has a panel of approved brain injury specialist solicitors, all of whom will provide initial advice without charge or obligation.

Read more advice on bringing a brain injury claim

Advice on bringing a brain injury claim

This article has been produced by Philippa Luscombe, Penningtons Manches Cooper

Philippa Luscombe of Brain Injury Group member firm Penningtons Manches Cooper produced this article. Philippa is Partner in the personal injury team at Penningtons Manches Cooper and specialises in claims involving brain injury.

LAWS – providing initial free legal advice

Legal & Welfare Service (LAWS) online for brain injury help, advice and support

What is the Brain Injury Group?

Brain Injury Group is a free service designed to connect those affected by a brain injury (whether there is a claim or not) to a range of experts who may be able to offer advice and assistance.

If you’d like to find out more about the work of Brain Injury Group, you are at the right place! You can follow the links below to:

The Brain Injury Group exists to support individuals and families affected by brain injury and the health and social care professionals working in this specialist field. Our mission is to provide anyone affected by brain injury with access to advice on legal, financial and welfare benefit issues delivered by proven experts in the field who have been chosen not only for their skills and knowledge, but also for their passion and dedication to helping people.

As well as providing legal and welfare advice, Brain Injury Group provide training for legal, health and social care professionals. View our award winning Brain Injury Group brain injury training events.

The Brain Injury Group brain injury directory

The BIG Brain Injury Services Directory

How can Brain Injury Group help you?

If you would like advice about bringing a brain injury claim, capacity, deputyships, managing the award of compensation or any other aspect of brain injury welfare, legal or financial advice, we have specialist brain injury solicitors and Court of Protection solicitors who can assist.

You can find full details of Brain Injury Group members on our website or there are several ways to get in touch:

  1. Call us on 0800 612 9660 or 01737 852203
  2. Email us at enquiries@braininjurygroup.co.uk
  3. Complete this short enquiry form and we’ll get back to you
  4. Find a specialist brain injury solicitor near to you