What Makes Brain Injury Claims Different?
In terms of the general legal process, brain injury claims are like any other personal injury claims. However, they have their own complexities throughout. As brain injuries tend to affect individuals in different ways, no two brain injury claims are the same.
A catastrophic brain injury is the result of a sudden impact or jolt to the head or the body that is categorised clinically as severe. It can manifest as a skull fracture, penetrating injury or other form of serious brain damage.
Unlike many physical injuries, the full effects of a catastrophic brain injury are not always immediately clear. Symptoms can evolve over time, affecting a person’s physical abilities, cognition, behaviour and emotional wellbeing. A claimant’s mental capacity could also be a key consideration.
Therefore, it can take time to establish a reliable prognosis and accurately assess the value of a brain injury compensation claim.
Common Types of Catastrophic Brain Injuries
There are a range of catastrophic brain injuries, mostly caused by incidents like falls at work, vehicle-related accidents including cycling and motorcycling, and sports injuries. Injury types can include:
- Contusions: Bruising of the brain tissue, which can happen when the brain is forced against the inside of the skull.
- Haematomas: A collection of blood that forms when a blood vessel is damaged.
- Diffuse axonal injury (DAI): Caused by rapid acceleration, deceleration or rotation of the head, which can stretch or tear nerve fibres across different areas of the brain.
- Penetrating brain injury: Happens when an object passes through the skull and damages the brain directly.
- Hypoxic-ischaemic brain injury: Caused by reduced oxygen supply or reduced blood flow to the brain.
- Haemorrhage: Bleeding in or around the brain, which may be described as epidural, subdural, subarachnoid or intracerebral.
When Am I Eligible To Make a Brain Injury Claim?
To make a severe brain injury compensation claim, you must usually be able to show that another party was responsible for your injury through negligence or a breach of duty. This could involve an employer, road user, organisation or another individual.
Brain injury claims or head injury claims must generally be started within three years of the date of the accident or the date on which the injured person became aware that their injury was linked to the incident. There are some exceptions to the 3-year limitation period, including accidents abroad or whilst travelling on an aeroplane, boat or international train.
Different rules can apply where the injured person is a child or lacks mental capacity.
Additionally, if your injury has resulted from a violent assault, the claim might be made through the Criminal Injuries Compensation Scheme, which has a 2-year time limit.
Getting Early Legal Support
Applicable to every personal injury claim, the 2015 Rehabilitation Code allows the representative of the injured person or claimant to put steps in place for treatment from the point of notification of the claim.
It’s a voluntary framework for legal parties; however, it’s very commonly followed for catastrophic injuries. Essentially, it means that getting early legal support could unlock access to earlier rehabilitation – so the sooner you seek it, the better.
How Does The Brain Injury Claims Process Work?
From finding the right solicitor through to hopefully receiving catastrophic brain injury compensation, the claims process can feel daunting. Breaking it down to the main stages can help you approach it in the right mindset. Essentially, it involves choosing a specialist legal team, assessing the capacity of the injured person, gathering the right evidence and, most importantly, supporting the injured person throughout the entire process.
Choosing Your Solicitor
Before starting to make a brain injury claim, choosing your solicitor is an important part of the process. This stage is known as ‘beauty parading’ and is just as important as any other part of the claim. Things to consider in this process are:
- How much a solicitor listens to both the injured person and the family involved.
- How transparent a solicitor is about the duration of the process (no false promises; brain injury claims tend to take longer than you think).
- Specialism in brain injury – brain injury occupies its own niche within personal injury, and solicitors with experience understand its complexity fully and can deal with brain injury cases in the best possible way.
- Transparency around costs and “no win, no fee” agreements – don’t be afraid to read the fine print. A reputable solicitor will clearly explain any fees, deductions and potential costs so you can make an informed decision.
Court of Protection and Brain Injury
Brain injuries can directly impact mental capacity, so it is something to start thinking about as soon as possible. However, not everybody with a brain injury lacks this capacity, and the decision must be weighed up with care.
The Mental Capacity Act outlines the best approach to an injured person’s mental capacity. Assuming they can make a decision themselves, unless proven otherwise, is the best ethical practice in any personal injury claim.
If you need help with weighing up mental capacity, which may involve applying for a deputy or appointing a litigation friend later down the line, speaking to a specialist solicitor can provide you with an objective opinion on what the best route will be.
Thinking about the injured person’s needs early can help when it comes to talking through any ideas with your solicitor.
Getting Evidence
The first building block of a brain injury compensation claim is gathering evidence. Some of this can be gathered by the claimant at the scene of injury, if possible and safe to do so. This helps establish both how the injury occurred and the impact it has had on the injured person’s life.
Useful evidence may include:
- Photographs or videos from the scene of the accident.
- Witness statements from anyone who saw what took place.
- Accident reports completed by employers, businesses or other organisations.
- CCTV, dashcam or bodycam footage where possible.
- Medical records connected to the injury.
- Evidence of expenses incurred because of the injury.
The more information that can be preserved at an early stage, the easier it can be to build a clear picture of liability and the full consequences of the head or brain injury.
Getting Medical Evidence
To represent the full picture of a brain injury, many medical professionals need to be involved in the claim, from neuroradiologists to psychiatrists. Brain injury solicitors will have an idea of which medical examinations need to be ordered to represent the full scope of the brain injury and produce a true prognosis. Moreover, they will have medical specialists in their network who can provide these.
Loss of Earnings
A catastrophic brain injury can have a significant financial impact, both immediately and in the years ahead. As part of the brain injury claims process, solicitors will investigate losses that have already been incurred paired with those that may arise in the future.
Loss of earnings can include:
- Reduced earning capacity at work
- Rehabilitation and therapy costs
- Specialist equipment and assistive technology
- Care and support costs
- Accommodation adaptations
- Travel expenses connected to treatment and appointments
- Case management costs
- Long-term medical treatment and support
The goal is to ensure that any settlement reflects the injured person’s full needs, both now and in the future.
How Long Does a Brain Injury Claim Take?
The length of time it takes for a brain injury claim to settle depends on the complexity of the case. Factors such as the injury’s severity, the time needed to gather medical and legal evidence, and whether a settlement can be reached out of court can all affect the timeline.
How Injury Support Services Can Help
At Injury Support Services, we understand the challenges and uncertainty that can follow a brain injury. Our aim is to provide support and guidance for you or your loved one throughout the recovery journey.
We have specialist brain injury solicitors in our trusted professional network, as well as rehabilitation providers and wellbeing services. We’re here to help you move forward, whether you need practical advice, helpful resources or dedicated support.
