Bringing a claim for brain injury – what you might need to know.
If you have been involved in an incident that has caused a blow to the head and/or a loss of consciousness resulting in ongoing symptoms it is worth investigating whether you may have a claim. This could be as a result of a road accident, an accident at work, an accident on public or private land an assault or injury as a result of any other kind of criminal act or violence. An injury could also be caused by medical negligence in the course of treatment. This is not an exhaustive list but these are some of the main causes we encounter.
What kinds of brain injury can someone claim for?
The term “brain injury” covers many different types of injury to the head but usually results from a violent blow or jolt to the head or body. An object that goes through the brain tissue can also cause traumatic brain injury. Resulting injuries could include a skull fracture, a bleed on the brain or concussion and related symptoms.
A brain injury can vary in severity depending on the type of injury that has been sustained. It will be assessed as being severe, moderate or mild by treating and reporting experts. These may include neurologists, neuropsychologists and neuropsychiatrists. Severity will be dependent upon the level of symptoms suffered at the time of the incident and ongoing symptoms.
Symptoms of a mild brain injury.
Some of the symptoms you may experience if you have a mild traumatic brain injury include:
- loss of consciousness for a few seconds to a few minutes or a state of being dazed or confused;
- headaches;
- nausea or vomiting;
- fatigue or drowsiness;
- problems with speech;
- dizziness or loss of balance;
- blurred vision;
- ringing in the ears;
- memory or concentration problems;
- mood changes;
- difficulty sleeping / sleeping more than you normally would.
Mild traumatic brain injury usually has a good prognosis and will include full or a good recovery.
Symptoms of a more moderate or severe brain injury.
Some of the symptoms you or someone close to you may experience if you/they have a more moderate to severe traumatic brain injury include:
- loss of consciousness from several minutes to an hour;
- persistent headaches or headaches that get worse;
- repeated vomiting or nausea;
- convulsions or seizures;
- dilation of one or both pupils of the eyes;
- clear fluids draining from nose or ears;
- inability to awaken from sleep;
- weakness or numbness in fingers and toes;
- loss of coordination;
- profound confusion;
- agitation and unusual behaviour;
- slurred speech;
- behavioural changes;
- difficulty following conversations;
- difficulty understanding speech or writing;
- unable to organise thoughts;
- difficulty with self-control / awareness;
- risky behaviour;
- anxiety;
- anger.
Brain injury symptoms in children.
In children symptoms may be different – and it is often harder to identify due to lack of communication or limited communication. After any kind of head injury you should look for:
- nausea or vomiting;
- change in eating habits;
- unusual or easy irritability;
- persistent crying;
- change in attention ability;
- change in sleep habits;
- seizures;
- depressed mood;
- drowsiness;
- loss of interest in favourite toys and games.
Recovery & rehabilitation: what might a claim help to pay for?
Recovery from a brain injury can be a very difficult and worrying path for both the person who has suffered the injury and their family and friends who surround them. It is therefore important to get early assistance from an expert legal representative who can help guide you through the process. Early intervention of treatment has also proven to be more beneficial for people who are suffering.
Recovery rates for brain injury will vary depending on the severity of the injury. Whilst it is possible for some people to make a full recovery, others will be facing lifelong challenges and will need ongoing support into the future and indefinitely. This may involve long-term treatment, rehabilitation, and support financially, which would be built into any compensation settlement.
A brain injury will not necessarily mean that someone cannot work at all. It may be that their employer will be able to make reasonable adjustments to enable them to continue in their current role, a reduced role or in another role within the organisation. These are things which should be explored and discussed with any legal representative.
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Brain injury solicitors.
You will firstly need to consult with an experienced brain injury solicitor so that your case can be assessed. It will be risk assessed based on all elements of the case and an agreement will then be set up between you and your solicitor – this will include full discussion in relation to the funding of the case and how this works. It may vary from case to case depending on the risk involved.
The important factor to bear in mind is to seek advice at an early stage so that a legal representative can help you to navigate complex issues effectively as soon as possible.
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Time limits.
It is important to note that there is a certain period of time within which a claim needs to be made – this is called the limitation period. For personal injury claims, such as a claim for a brain injury, this means you usually have to make the claim within three years of the date of the accident or the date of diagnosis for your illness.
There are exceptions to this, including if the case involves a child. Claims on behalf of children can be made at any point before the child turns 18. When they turn 18, they can make their own claim at any point before they turn 21. Further, if the claimant lacks mental capacity, in which case there is no time limit for brining claim. There are other exceptions such as accidents involving boats and accidents abroad.
These are the most common exceptions for brain injury claims, but your solicitor will be able to advise you fully on limitation matters.
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Establishing liability.
Once a case has been accepted by a solicitor, it will then be necessary to establish liability and obtain agreement from the paying party that they accept liability of the incident. In some cases where a solicitor is satisfied that there are reasonable prospects of success in fighting a denial of liability, the case will proceed on that basis in the first instance.
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Evidence gathering.
Where liability had been established or the solicitor is satisfied that liability will not be an issue, evidence will be gathered in relation to your case.
In relation to the injuries, independent experts will be instructed in the relevant fields of expertise and they will assess a claimant and their full medical history prior to preparing a report which will form part of the evidence for the case. The solicitor will be able to ascertain which experts they need to instruct and also the experts will be able to confirm if they think any further expert opinion might be needed, depending on the type of injury.
A schedule of losses will be prepared which details all relevant past losses and future losses which will be necessary or have been recommended within the expert evidence.
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Issuing court proceedings.
In a lot of cases it will be necessary to issue court proceedings to start the process from issue through to trial. Whilst it is rare for a case to go all the way to trial, it is possible if there is a particular sticking point and your solicitor is satisfied that you will be successful.
The majority of cases will settle by way of prior negotiation or at a joint settlement meeting. Your legal representative will be there to guide you through the process from beginning to end. The claims process can be a lengthy and stressful time for a claimant. The length of time it takes can vary for a number of reasons including complexity of the particular issues involved. Typically a case will take up to three years to settle but more serious injuries will take a lot longer.
Children’s claims can often take many years to settle due to the complex nature of obtaining evidence and not being able to predict the outcome in the early years where there is a severe injury sustained. It would therefore not be wise to settle a child’s case early as you may be undercompensating them without knowing the full picture as they develop.
Any child’s case or adult who lack lacks capacity will have to be approved by a court following an agreement being reached and in these cases a ‘litigation friend’ will act on behalf of the claimant. This is a person who is instructed to assist someone else claim compensation if they are unable to do so themselves – e.g. if they are a child or lack capacity. They will have a number of responsibilities to fulfil on behalf of the claimant and the legal representative will talk this through with them prior to an agreement to act.
How much compensation can you get for a brain injury?
The amount of compensation will depend on the severity of the injury.
A claimant will be compensated for the level of pain, suffering and loss of amenity. This is assessed by arranging independent assessments with experts in the relevant fields of expertise, depending on the type of injury sustained.
Assessments may be done with a neurologist, neuropsychologist, neuropsychiatrist, educational psychologist, neurosurgeon, orthopaedic expert, physiotherapist, ENT/otologist experts, care and occupational therapy expert. This is not a complete list and there may be many other types of experts that could be instructed depending on particular complaints suffered and recommendations made from other experts. Following assessment, experts will produce reports which form part of the evidence for the case.
A claimant will also be compensated for any relevant past losses and expenses incurred as well as future losses that are likely to be incurred based on the injury and the recommendations made by the experts in their reports. Losses will include Loss of earnings, loss of pension, treatment costs, care, aids and equipment, accommodation costs, travel, mileage and transport.
As can be envisaged, there is a very wide range of possible compensation, depending on the severity of a particular injury and the ongoing affects.
What about benefits? Does making a claim impact on these?
There are a number of benefits which may be claimable following an injury. It is important to report any injury to your employer or as soon as possible as this may assist in reducing delays in receiving payments from the Department for Work and Pensions.
Some of the relevant benefits include:
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Statutory Sick pay (SSP).
Paid to employees by their employer for up to 28 weeks if they are off sick from work. To qualify you must be incapable of work for four or more days. A GP fit note is normally required.
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Universal Credit.
Peplacing jobseeker’s allowance, housing benefit and working tax credit, child tax credit, employment support allowance and income support. Applicants have to accept a claimant commitment if they wish to get Universal Credit and this will involve completing certain tasks.
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Industrial Injuries Disablement Benefit.
This is the payment if you are disabled as a result of an accident at work or a disease caused by a job. You must have been employed, suffered a personal injury in an industrial accident and are disabled as a result – at least 14% disablement.
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Personal Independence payment (PIP).
PIP is payable to those aged 16-64 who have a long-term health condition or disability and difficulties with activities related to daily living or mobility.
To be eligible for PIP you must have had the difficulties for three months and must expect them to last at least nine months. Daily living and mobility are each made up of two components – standard and enhanced. It depends upon the severity of the condition as to whether you can claim.
Brain injury can also be considered a disability under the Equality Act 2010, which can impact employment rights. This will in most cases be dealt with, within the independent expert evidence obtained.
Your entitlement to continue to claim a particular benefit will depend on whether it is means tested.
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Non means-tested benefits include:
- incapacity benefit;
- industrial injuries benefits;
- Personal Independent Payment (PIP).
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Means-tested benefits include:
- income support;
- income based jobseekers allowance;
- income based employment and support allowance;
- housing benefit;
- council tax benefit;
- health benefits.
Your legal representative will be able to guide you in relation to this.
Making a brain injury claim can be a very daunting and worrying idea. It is therefore, important to:
- get early assistance from an experienced brain injury representative;
- discuss your concerns from the outset so that appropriate rehabilitation can be sought;
- be prepared to undergo assessments from experts who will prepare reports in relation to injuries that form part of your evidence;
- provide all relevant information in relation to past losses;
- consider benefits that you will wish to claim for and benefits you already receive;
- be prepared for a lengthy process but be assured that in contacting an experienced professional to assist with the claim will keep you in safe hands.
At RWK Goodman, we understand the impact that a head or brain injury can have on your life, as well as the challenges involved. We’ll guide you through the process every step of the way, to ensure you receive the brain injury compensation you are entitled to.
If you would like to discuss making a potential claim for a brain injury suffered by yourself, or someone else, please contact our specialist brain injury team and we can assess your claim.
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