The thought of bringing legal proceedings to claim compensation following a brain injury can be daunting.
Whilst the money from compensation can be useful, it is important to remember that bringing a brain injury claim is about so much more than financial compensation; it can enable access to rehabilitation, help with medical treatment, help support day-to-day living expenses which can be important if the injured person is the main breadwinner, and assist with home adaptations if your home no longer meets your needs due to injuries sustained in the accident.
About making a brain injury compensation claim
Time limits for a brain injury claim
Generally, there is a three-year time limit in which to commence a claim, but it is a good idea to speak to a solicitor as early as possible so that you can start to benefit from their assistance and expertise.
There are a few exceptions to the three year time limit, for example minors who are under 18 at the date of the accident have until their 21st birthday in which to commence a claim; those who lack mental capacity are not restricted by time unless they regain capacity, at which point the three year time limit commences; accidents abroad or on boats and planes may have different time limits; and if your injuries were sustained as the result of an unprovoked attack, the time limit is 2 years (or 20th birthday for minors).
The compensation claim process
Whilst every claim is unique, there is a pathway your claim will follow, and we aim in this article to explain, to help you on your rehabilitation and recovery journey.
Choose a specialist brain injury solicitor
This may sound like the easiest part – perhaps there is a solicitor on the High Street who deals with personal injury claims, or your insurance company has provided you with details of their panel firm who can assist. But if someone has suffered a brain injury, it is not so simple.
Brain injuries are incredibly complex, and claims can take many years to settle. For catastrophic brain injuries there is likely to be an element of future care, loss of earnings, rehabilitation and housing adaptations required. And whilst many solicitors may have expertise in dealing with personal injury claims, a specialism in brain injury claims can ensure that you receive the right help and support, at the right time. A brain injury specialist will have an in-depth knowledge of how a brain injury can affect a person’s mobility, personality and behaviour, cognitive abilities, and the ripple effect it has on family, and will ensure that the family as a whole are supported.
We always recommend that you instruct a specialist solicitor who is at least one of the following:
- Brain Injury Group member;
- Features in the Headway Solicitors List;
- Is an accredited brain injury solicitor with APIL (Association of Personal Injury Lawyers); or
- Is an accredited member of The Law Society Personal Injury Panel.
It is important that you choose a solicitor who you like as you will likely be dealing with them for many years. If possible, try to speak to at least three solicitors and ask lots of questions about their brain injury experience.
What should a good brain injury solicitor do?
Your solicitor should arrange to meet with you, in person or virtually, to collect detailed information about the circumstances surrounding your accident, the injuries sustained and how they are affecting your life. At this point they will also discuss ways of funding your claim. Brain injury claims are often funded by way of a conditional fee agreement, commonly referred to as a no win no fee agreement, but other methods can include legal expenses cover via household or other insurance policies.
Once funding is agreed, initial instructions taken and evidence collated, your solicitor will send a letter of claim to the person responsible for your injuries or their insurer who has three months to investigate the claim and respond with their decision as to whether or not they accept liability for the accident.
During this period your solicitor should also explore rehabilitation needs and seek to agree with the other side’s insurer the possibility of instructing a case manager to prepare an Initial Needs Assessment and to explore funding of treatment (without prejudice to liability) to speed up your recovery. Where liability is accepted or likely to be accepted, the other side’s insurers will also be invited to make a voluntary interim payment on account of the prospective claim to help pay the usual household bills.
If liability is accepted, or if liability is disputed but there are reasonable prospects to proceed, your solicitor will arrange copies of all your medical records and appointments with appropriate medical experts to examine you and prepare a report on your injuries. In brain injury cases there can be a number of expert reports that are required and it may be necessary to reinstruct experts to update their (initial) reports until a clear prognosis can be given.
Your solicitor will negotiate settlement of the claim which could involve further evidence being obtained to show your losses and any future losses or expenses that may occur as a direct result of your injuries, such as future care needs or future loss of earnings or earning potential if your injuries are likely to prevent you from returning to your pre-accident employment. If settlement cannot be agreed between the two parties, then it may be necessary to involve the Courts and move towards trial for a Judge to decide the appropriate settlement.
If liability is denied, then both parties will obtain evidence to prove, or defend liability and if agreement cannot be reached, and your legal representative still believes there are reasonable prospects of success a Court will be asked to decide who is at fault. It is important to understand that prospects of success both in terms of deciding if there is a claim, as well as whether to accept or reject any offers made by the other insurer are kept under regular review and may change as the case progresses.
In some circumstances, it may be claimed that both parties were partially liable for the injuries sustained, known as contributory negligence. An example of this would be where someone is involved in a car collision which was not their fault, but they were not wearing a seatbelt at the time of the collision and therefore sustained more serious injuries than they would have, had they been wearing a seatbelt. In these cases, a % reduction would be agreed which is then applied to the overall compensation award, so if it were agreed there should be 20% contributory negligence, if an award of £100,000 was made, this would be reduced by 20% and £80,000 actually paid.
How long will my claim take?
Each case is unique, and it is extremely hard to predict how long a case will take to reach conclusion. It is not unusual for brain injury cases to take 3 or 4 years to reach conclusion, but it can take far longer. This depends on when the experts in the case are confident to give not just a diagnosis but a clear prognosis on your symptoms.
How Brain Injury Group can assist in making a brain injury claim
Brain Injury Group is a network of personal injury lawyers who specialise in brain injury claims. All our member firms will be happy to offer you a free, no obligation chat, to help you decide if pursuing a claim is possible and is the right course of action for you. To contact our members, head to our Find a Brain Injury Solicitor page, email us at firstname.lastname@example.org, talk to us via live chat on our website or call 0330 311 2541. If you would like to speak to more than one member firm, we are happy to facilitate that for you.
This article was produced with the assistance of Michael Wangermann, Partner, Ashtons Legal LLP
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