Victims of accidents, as a result of someone else’s fault, may be entitled to claim compensation. Such claims may arise out of accidents on the road, at work, while visiting someone else’s premises, as the result of a criminal assault or from medical malpractice. Just because an accident has occurred does not mean that the injured party is automatically entitled to compensation. Likewise, just because the victim is also partially at fault (by reason of contributory negligence) does not mean that a claim cannot be brought. Each claim turns on its own facts and you will need to take specialist legal advice to assess the merits or otherwise of your claim.
How much compensation?
There is no set amount of compensation for a brain injury. Each case will turn on its own facts but these types of claims can only run into £millions. The claim will be made up of 3 elements:
1. Damages for the pain, suffering and loss of amenity – this is the pure compensation (non-financial) element of the claim and will depend on the nature and extent of injuries suffered, the treatment the victim has had to/will endure, the age of the Claimant and his/her life expectancy. The amounts awarded are based on published guidelines and similar reported cases. For the most catastrophically injured Claimant’s, these awards tend to be in the region of £200,000 – £300,000.
2. Past Financial Losses – this is simply the actual losses suffered by the accident victim up to the date of conclusion of the claim. Losses must be reasonably foreseeable, reasonable in amount and were suffered by the Claimant as a result of the injuries sustained. Although, only the accident victim, has a claim – this aspect can include a claim for the reasonable gratuitous care and expenses (such as travelling to and from hospital visits) provided by his loved ones. A specialist lawyer will be able to advise you on this aspect.
3. Future Losses – this will usually be the largest element of the claim and it will include claims for things such as loss of earnings and pension, care and equipment, accommodation and home adaptations, therapies such as physiotherapy, speech and language therapy and occupational therapy and medical treatment.
But I’m getting most of this from the NHS or my local authority
While we should be genuinely proud of our statutory services, we all know that public resources are stretched and variable from one area to the next. A compensation claim, will enable you to claim what is reasonably required: not what is available from the state according to its limited financial resources. A claim can legitimately include the cost of private medical treatment, irrespective of it being available on the NHS. Where the claim is being met by an insurer (as is the case in road accident cases), the claimant is relieving the NHS from funding treatment and care so that others without claims may benefit.
Form of Damages
Damages can either be paid as a lump sum (which involves an accurate prediction for the future) or as a combination of a lump sum (to cover immediate expenses) and annual payments for the rest of the accident victim’s life. There are a great number of benefits of annual payments in that they are flexible (in event of a change in circumstances), are tax free, last as long as the claimant lives and can be indexed to keep up in line with rising costs. A specialist lawyer together with a specialist independent financial advisor will advise on each individual case.
The general rule is that Court proceedings must be issued with the Court within 3 years of the accident occurring. Different rules apply to children, to brain injured adults who lack capacity to litigate, to accidents that occur abroad and to accidents that occur in the air or at sea. Victims of crimes of violence may have a claim with the Criminal Injuries Compensation Authority so long as the claim is lodged within 2 years. As each case turns on its own facts, consult a specialist brain injury solicitor as soon as possible: a well-prepared case takes time.
Effect of Mental Incapacity
A brain injury often means that a Claimant lacks sufficient mental capacity to manage his/her financial and property affairs. Here:
• Special time limits for the claim may apply;
• He/she will have to act through a Litigation Friend- usually a close family member who will provide instructions and be the point of contact for the solicitor;
• Finances will have to be managed by a Court of Protection Deputy (see our separate guide to the Court of Protection) and the costs of this deputyship can be added to the claim;
• Any settlement of the claim will not be valid unless it is approved by a Judge.
Will I have to go to Court?
This is often the biggest worry for anyone considering a legal claim. Most of us have no actual experience of what happens in a court room – other than the drama we are shown on television and in films. The short answer is that while most severe brain injury compensation claims are filed with a court, very few end-up being determined at trial. More than 95% of cases are capable of settlement and then the court approval process is a relatively painless experience where you will not be subject examination.
Evidence in support of claims
Each claim will consist of two aspects:
1. Establishing Liability – i.e. who is to blame?
2. Quantum – i.e. how much is the claim worth.
Evidence will generally take the form of documents (such as medical records, employment and tax records and other relevant papers), witness statements from those that saw the accident or can comment on the effects of the injury and experts’ reports.
Generally, each party to a claim will call its own independent experts to value the claim. In brain injury cases, we typically expect experts in neuro-rehabilitation medicine, neurology, neuro-psychology, care and case management, occupational therapy (equipment such as transport and wheelchairs), accommodation, speech and language therapy, physiotherapy and possibly others depending on the facts of the individual case.
How long will the case take to conclude?
There is no one correct answer here. It would be foolish to attempt to settle a claim (and a court would not allow it) until the claimant’s injuries have settled to a state where medical experts can reasonably give an opinion on the long-term prognosis for the future. Moreover, it takes time to collate all the appropriate expert evidence to ensure that all elements of the claim are covered. As a general rule, do not expect the claim to take less than 3 years to conclude to settlement. Where the claimant is a child, it is often wise to wait for the outcome of development stages before the claim is finalised. A specialist brain injury lawyer should be able to manage your expectations by talking you through the process involved.
So, what do I do for money in the meantime?
From the outset, a specialist brain injury solicitor, will be able to advise you on obtaining immediate financial assistance from:
• The Rehabilitation Code – this code of practice (which is now part of the Court rules) enables claimants to be assessed immediately for their rehabilitation needs which will be funded by insurers even while liability investigations are ongoing;
• Interim Payments- once the issue of liability has been resolved, it should be possible to secure interim payments on account of the damages generally. You will have to give credit for sums received at the end of the case, but this will help relieve the burden.
• State Benefits – see our separate guide on Benefits and Statutory Funding.
Funding Personal Injury Claims
Most claims for personal injury or clinical negligence claims are funded by way of a Conditional Fee (no win, no fee agreement). Here, the solicitor will seek to recover his or her standard hourly rate from the opponent (on top of, and not out of, your damages). However, in exchange for waiving the fee entirely in the event of the claim failing, the Solicitor will also seek to charge a success fee in event of a successful claim. The success fee is a percentage of the basic hourly rate costs (not a percentage of the damages) and can be anything from 0-100% of the basic hourly rate costs. However, the overall success fee is capped by law at a sum not exceeding 25% of the damages for pain suffering and loss of amenity and past financial losses. The success fee will not attach to the future loss element, which is, usually, by far the greatest proportion of the claim.
It is wise to combine a Conditional Fee Agreement (CFA) with an insurance policy to protect you in the event of an unsuccessful claim (where you will have to pay the lawyer’s expenses such as experts’ fees and court fees) and alsoa liability for the Defendant’s legal costs in event of your failing to beat an offer of settlement which has been made at an earlier stage. A reasonably competent solicitor should be able to explain the options for insurance. Most policies provide for a deferred and self-insured premium so that you never actually pay the premium until the end of a successful claim. It is important to realise that many standard policies provide a level of indemnity that is insufficient for the likely costs exposure involved so you must ask your solicitor to confirm that the policy is likely to be sufficient at the outset – otherwise top-up insurance cover may be necessary and can be more expensive at a later stage.
Some people already have their own pre-existing legal fees insurance attached to their own household or motor policies. A reasonably competent brain injury specialist solicitor will be able to advise you as to the benefits and limitations of such a policy. Some of these policies require you to instruct the insurers’ panel solicitor. A specialist brain injury solicitor will advise you on the possibility of challenging that policy term.
In recent years, court fees have increased considerably. The fee for issuing court proceedings (as at 01.01.2018) is £10,000 for an unlimited claim. It is important that you explore the possibility of the means-tested fee remission (even if your solicitor will fund that expense at the time) – otherwise, you may not recover court fees and they may be deducted from damages.
If the solicitor is willing to limit his or her fees to that amount recoverable from the other side, then the level of fees will be of less significance to you. Where a success fee is payable, then the hourly rate will clearly have an effect on the success fee- but you may consider it to be a false economy to instruct an apparently cheaper legal representative if the prospects of the best outcome are reduced by reason of appointing someone with less expertise and experience in brain injury cases. The hourly rate that the solicitor can recover from the Defendant is ultimately decided by the court if this cannot be agreed with the other side. This does, however, raise another issue. Some, but not all, solicitors require that their clients will remain responsible for any shortfall of hourly rate costs that they cannot recover from the other side. You may feel that if the solicitor cannot justify these costs as being reasonable to a court, then why should you pay them. You may wish to check the proposed arrangement as to shortfall of costs before deciding whether instruct a particular solicitor.
Finding and Choosing a Brain Injury Specialist Solicitor
All solicitors are not the same. You may have used a solicitor in the past for buying or selling your home, with a divorce or to draft a will. Do not assume the same solicitor will have sufficient expertise in handling a claim involving catastrophic brain injuries. You will appreciate from this short guide that these claims are complex and require specialist knowledge and skills. It is important to find an individual with the relevant expertise and experience – rather than a firm that may be endorsed but who will allocate your case to someone who may not be suitable.
We can, however, recommend some questions that you may wish to ask before deciding who to instruct. We recommend that you speak to at least 3 lawyers so that you can then make an informed decision. Your professional relationship with the solicitor may run for 3 or so years so it is important that you have a degree of trust in your professional advisor. Our suggested questions (and we encourage you to think of others that are relevant to your particular circumstances) are as follows:
1. Are you willing to visit at home or at hospital?
2. Who will be handling my case on a day to day basis?
3. What is your particular, and recent, experience of handling similar cases?
4. Are you (as an individual) accredited as:
(i) The Law Society Personal Injury Accreditation Panel (this covers all areas of personal injury) or The Law Society Clinical Negligence Accreditation Panel (this covers all areas of clinical negligence);
(ii) The Law Society Catastrophic Injury Accreditation Panel (this covers very severe injury cases and is more relevant to brain injury cases than the other Law Society Panels);
(iii) The APIL (Association of Personal Injury Lawyers) Brain Injury Experts Accreditation Panel;
5. Can you put me in touch with any recent or current clients who will be willing to share their experience of your handling of a brain injury claim?
6. Is your firm accredited by:
(i) Other brain injury charities, such as Headway, CBIT, UKABIF etc? (please note that some charities charge a fee to suitable firms of solicitors to be included on their published lists of recommended lawyers);
(ii) Other networks of brain injury solicitors – this includes Brain Injury Group – (which has provided financial support to Brain Injury is BIG in the past)
(iii) Other membership organisations such as AvMA and SCIL (clinical negligence lawyers’ networks), APIL (Association of Personal Injury Lawyers) etc.
7. How do you propose to fund my claim? What success fee do you propose? Do you also charge the shortfall of costs, not recoverable from the Defendants?
8. Are you able to provide assistance or direct me to help in relation to ancillary matters such as applying for a Court of Protection Deputyship?
9. What level of professional indemnity insurance does your firm carry in case things go wrong with my claim?
10. Who will be my point of contact? Will I be able to contact you out of hours in event of an emergency? (Many solicitors will provide their mobile telephone number or respond to emails out of hours to ensure that urgent matters can be attended to).
About this guide
This guide is a general guide to compensation claims. It is not a substitute for professional legal advice no reliance should be placed upon this guide as legal advice. We recommend that you speak to a suitably qualified legal professional as circumstances can vary and the consequential legal steps required will be different from case to case.