Brain Injury Compensation Claims
How do I make a brain injury claim?
To be successful in a negligence claim, you will have to:
(i) Identify the correct Defendant,
(ii) Prove that the Defendant owed you a duty of care,
(iii) Prove that the Defendant breached their duty of care towards you,
(iv) Prove that the breach of duty caused your brain injury.
There is a process and timetable the parties are expected to follow for the exchange of relevant information in order to resolve their dispute amicably. However, if the dispute cannot be resolved amicably, court proceedings may be necessary.
How long do I have to make a brain injury compensation claim?
You have 3 years from the date of the accident to make a brain injury compensation claim. If the accident occurred when you were a child, you have until your 21st birthday. If you are acting as the personal representative of a deceased’s estate, you have 3 years from the date of death. The court does have a discretion to allow claims to proceed out of time in exceptional circumstances.
If the injured person is a protected party at the time of the accident or the accident itself causes the injured person to become a protected party, the normal 3 year limit does not begin to run until they regain capacity.
Protected parties are adults who lack mental capacity to manage their own court cases.
How much compensation can I claim for a brain injury?
Compensation is split into two parts: General damages – intended to reflect the injured person’s pain, suffering and loss of amenity, and Special Damages – all other financial losses suffered by that person as a result of their injury, such as lost earnings, costs of care and assistance, costs of aids and equipment, treatment costs etc.
The value of general damages for a brain injury is dependent on the effects of the injury upon the injured person.
Minor brain injuries, where there is a full recovery, warrant awards between £2,500 to £15,500. Less Severe brain injuries, where there is a good albeit incomplete recovery, warrant awards between £18,500 to £52,500. Moderate brain injuries resulting in some level of disability and dependence on others warrant awards between £52,500 and £267,000. Moderately severe brain injuries resulting in serious disability and a substantial dependence on others warrant awards between £267,000 and £344,000. Very severe brain injuries resulting in minimal meaningful responses to environment, minimal language function, double incontinence and the need for full-time nursing care warrant awards between £344,000 and £493,000.
Can I make a brain injury claim for a loved one who has died?
Yes. The personal representative of the deceased’s estate can claim for the following:
(i) the deceased’s pain, suffering and loss of amenity between the accident date and the date of the death,
(ii) financial losses incurred by the deceased prior to their death.
Certain categories of people can also claim for the following:
(iii) a statutory bereavement award currently £15,120,
(iv) funeral expenses,
(v) loss of the deceased’s income and services as their dependent.
How much does a brain injury claim cost?
Brain injury compensation claims are likely to be valued above £100,000. Therefore, fixed costs do not apply. However, the paying party, will only pay costs that are reasonable and proportionate. If the parties cannot agree, the court will assess the level of costs to be paid.
Brain injury compensation claims will usually be funded under a Conditional Fee Agreement, commonly known as a ‘no win, no fee’. If the claim succeeds, the claimant will be liable to pay a success fee. The success fee can be no more than 25% of their compensation. There may also be an After-The-Event insurance premium that the claimant will also pay out of their compensation at the end. If the claim fails, the claimant will usually pay nothing.
How long does a brain injury claim take?
Brain injury compensation claims can take up to 2 years to resolve and may take longer depending on court timetables and the action that is required.
Who can make a brain injury compensation claim?
Anyone who has suffered a brain injury as a result of negligence can make a brain injury compensation claim. Litigation friends can assist children or protected parties to bring a claim. Personal representatives can bring a claim on behalf of a deceased’s estate.
- Litigation friends can be family members or friends who make decisions in the best interests of the child or protected party.
- Protected parties are adults who lack mental capacity to manage their own court cases.
- A personal representative is the person or people legally entitled to administer the estate of a person who has died.