If you or a loved one have suffered a brain injury as a result of a medical mistake, or for an accident or incident for which someone else was to blame, you should immediately seek expert legal advice from a solicitor specialising in these types of claims. Brain injuries can have a catastrophic impact on the lives of the injured person and their family, where seeking compensation can at least provide the financial support needed moving forward.
The following guide for claimants looks at the different aspects of the brain injury claims process, from what these types of claims cover to bringing claims on behalf of children.
What is a brain injury claim?
A brain injury claim typically refers to a claim for compensation for an injury to the brain arising out of an accident, incident or medical error for which someone else was to blame.
Typically, the most common causes of brain injuries are road traffic accidents, accidents in the workplace, such as on construction sites, or even slips, trips and falls in a public place. However, brain injuries can also arise as a result of medical negligence, either in the private healthcare sector or through the NHS. On the whole, the care and treatment provided by the NHS is very good, but medical mistakes can and do happen, in some cases resulting in devastating, debilitating and life-changing consequences for the injured patient.
In all these cases, regardless of the context in which the brain injury has arisen, provided it can be shown that the injury was the fault of someone else, or at least partly their fault, you could be able to claim compensation to recompense you or a loved one on their behalf.
What constitutes a brain injury?
A brain injury can range from a relatively minor injury where any damage to the brain is minimal and short-lived, with a recovery period of just a few short weeks, to the most serious cases causing severe cognitive and physical disabilities for which the injured person will require constant professional care for the rest of their lives.
Brain injuries can be categorised as either traumatic brain injuries (TBIs) or acquired brain injuries (ABIs). TBIs are injuries to the brain caused by an external force, while ABIs are a broader category of brain injury, including injuries to the brain caused either by an external force or as a result of a stroke or other illness that affects the brain. ABIs essentially refer to any type of brain injury acquired since birth, where TBIs are a sub-category of ABIs.
What is a serious, traumatic brain injury?
The clinical severity of a traumatic brain injury is generally classified as mild, moderate or severe by reference to what is known as the Glasgow Coma Scale, as well as the length of loss of consciousness and/or the period of post-traumatic amnesia. In contrast, the terms mild, moderate and severe under the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (JCGs) — used in the context of brain injury claims — refer not to the clinical categorisation of the injury, but rather to the effects of the injury upon the claimant, where the awards of compensation for a brain injury for which someone else was to blame will principally reflect the severity of functional outcome.
As such, when reference is made to a serious traumatic brain injury in the context of a brain injury compensation claim, this will often describe an injury falling into either the ‘very severe’ or ‘moderately severe’ brackets under the JCGs.
For very severe cases, there may be some ability to follow basic commands, recovery of eye opening, return of sleep and waking patterns, and postural reflex movement, although there will be little or no evidence of meaningful response to environment, little or no language function, double incontinence, and the need for full-time nursing care. This bracket includes cases involving ‘locked in’ syndrome, with substantially restricted life expectancy. This is a neurological disorder where a person is paralysed except for the muscles that control eye movement. The very severe bracket will also include traumatic brain injury cases resulting in a permanent vegetative or minimally conscious state.
Even within the moderately severe bracket for brain injures, the injured person will be very seriously disabled, with substantial dependence on others and a need for constant professional and other care. The person’s disabilities may be both physical, for example, limb paralysis, or cognitive, with marked impairment of intellect and personality.
Who can make a brain injury claim?
You can make a claim for a brain injury if you have suffered an injury to your brain for which someone else was responsible, or partly responsible, but where you still have the mental capacity to make informed decisions. You can also make a claim for compensation for a brain injury on behalf of a loved one who no longer has the capacity to do so themself.
A brain injury claim can be based on a wide range of different negligence scenarios, provided you can show that a duty of care was owed, that duty was breached and that breach caused the brain injury. This could include where another motorist breaches their duty not to cause harm to other road-users, including other drivers, passengers, motor cyclists, pedal cyclists and pedestrians. It also includes where an employer breaches their duty to ensure the health, safety and welfare at work of an employee; where the local authority or a private retailer breaches their duty to ensure that any visitors are reasonably safe in using their premises; or where a doctor or other healthcare professional breaches their duty to provide their patient with a reasonable standard of medical care.
How to make a brain injury claim
When making a brain injury claim, either for yourself or on behalf of a loved one, advice should be sought from a solicitor with expertise in handling these types of complex claims. Even with relatively minor brain injuries, the medical prognosis is not always clear, where this type of injury can have long-term complications. By seeking expert legal advice, your solicitor can ensure that you are adequately compensated for your injury, including any potential future financial losses arising out of what has happened.
Having instructed a solicitor, they will begin to gather the evidence needed to prove the claim, including instructing the necessary medico-legal experts to provide a clear diagnosis and prognosis. Your legal team will also be able to begin to negotiate an out-of-court settlement with the defendant’s insurers or, in the case of a claim for medical negligence against the NHS, with the body responsible for dealing with these claims, known as NHS Resolution. In the most serious cases, provided liability is not in dispute, your solicitor will often be able to secure an interim payment, or series of payments, to help ease any financial pressure and provide access to any experts to facilitate further recovery.
These claims can take a long time to settle, often several years, especially where there is an extensive rehabilitation period and the prognosis is not immediately clear. Being able to access compensation at an early stage, without running the risk of a claim being undervalued, can be essential when adjusting to living with a serious brain injury.
Making a brain injury claim for a child
Coming to terms with the impact of a brain injury on your child’s life can be hard enough, although knowing that their injury could have been avoided, but for the carelessness or wrongdoing on the part of the proposed defendant, can make this far worse.
By seeking compensation for your child, even though this will not make up for the potentially catastrophic consequences of the defendant’s negligence, this can help you to get some justice on their behalf for what has happened, with the financial support to be able to provide them with the care and support needed to live with a brain injury.
Cases involving brain injuries at birth as a result of medical negligence, resulting in severe cognitive and physical disabilities, will often fall within the most serious category of the JCGs — including cases involving quadriplegic cerebral palsy — where it possible to secure sufficient compensation to ensure that your child will be financially taken care of for life.
How much is brain injury compensation?
The amount of compensation that can be recovered for a brain injury claim can vary, depending on the severity of the injury and the impact of this on the injured person’s qualify of life. Under the JCGs, the award for each category of brain injury is given as a range, with some guidance as to what features would justify either a higher or lower award in certain cases. Below we set out the current brackets under the JCGs (16th edition):
- Injury resulting from brain damage (very severe): £282,010 to £403,990
- Injury resulting from brain damage (moderately severe): £219,070 to £282,010
- Injury resulting from brain damage (moderate): £43,060 to £219,070
- Injury resulting from brain damage (less severe): £15,320 to £43,060
- Injury resulting from brain damage (minor): £2,210 to £12,770.
The level of award within the bracket for very severe and moderately severe brain injuries will be affected by things like the degree of insight, if any; life expectancy; the extent of physical limitations and potential for future deterioration; the degree of dependence on others; ability to communicate with or without assistive technology; the extent of any behavioural problems; and the presence of epilepsy or a significant risk of epilepsy.
For what are deemed moderate brain injuries, there are the following three categories:
- cases in which there is moderate to severe intellectual deficit, a personality change, an effect on sight, speech and senses, with a significant risk of epilepsy and no prospects of employment: £150,110 to £219,070;
- cases in which there is a moderate to modest intellectual deficit, the ability to work is greatly reduced if not removed, and there is some risk of epilepsy: £90,720 to £150,110;
- cases in which concentration and memory are affected, the ability to work is reduced, but where there is only a small risk of epilepsy and dependence on others is limited. There may, nonetheless, be vestibular symptoms and an effect on senses: £43,060 to £90,720.
For those considered less severe brain injuries, the injured person will have made a good recovery and will be able to take part in normal social life and return to work. There may not have been a restoration of all normal cognitive functions, so there may still be persisting problems such as poor concentration and memory, or disinhibition of mood, which may interfere with lifestyle, leisure activities and future work prospects. The level of award within this bracket will be affected by the extent and severity of the initial injury, the extent of any continuing and possibly permanent disability, the extent of any personality change, as well as any depression. At the top of the ‘less severe’ bracket there may be a small risk of epilepsy.
Finally, for minor brain injuries, brain damage, if any, will have been minimal. The level of award will be affected by the severity of the initial injury, the period taken to recover from any symptoms, the extent of continuing symptoms and the presence of headaches. Cases resolving within about 2-3 years are likely to fall within the mid to lower range of the bracket, where the bottom of the bracket will reflect full recovery within a few weeks.
In all cases, an award will reflect the pain, suffering and loss of amenity arising from the brain injury itself, referred to in legal terms as ‘general damages’. However, a claimant will typically be awarded additional and even greater sums of money to compensate them for any financial losses flowing from their injury. These are referred to as ‘special damages’ and could include past and future loss of earnings, significant care and rehabilitation costs, the cost of adaptations to their home, plus the cost of mobility aids or assistive technology.
What is the time limit to bring a brain injury claim?
Typically, any claim for personal injury must be made within 3 years of the accident or injury. However, there are some exceptions to this rule, including if the injured person has lost mental capacity by way of a serious brain injury. Also, for any claimant under the age of 18 when their injury occurs, they will have until their 21st birthday to claim.
Still, securing a settlement as soon as possible can often make the task of living with a brain injury, or caring for a loved one with a brain injury, much easier.
By seeking specialist legal advice as soon as possible, your solicitor can start the process of bringing a brain injury claim on your behalf, in this way getting you or your loved one the financial help needed to fund any rehabilitation and to start to move forward.
Brain injury claim FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
