Acquired brain injury

Acquired brain injury FAQS

• What causes acquired brain injuries?

  There are many situations, illnesses and events that can cause an acquired brain injury.

  These causes can fall into two broad categories: traumatic and non-traumatic.

  If someone suffers a traumatic brain injury (TBI), something outside of the body has caused damage to the brain. It can be as innocuous as banging your head on a low ceiling or an object falling on you. A TBI also includes brain damage from something penetrating the skull.

  A non-traumatic brain injury is due to something happening (or not happening) inside the body. While this type of ABI often has an external origin, the injury itself is due to the brain’s supply of blood/oxygen being disrupted. It’s also known as a hypoxic brain injury.

• How do acquired brain injuries affect someone?

  No two people are the same, so you cannot know for sure how much an acquired brain injury (ABI) will affect an individual. ABIs can affect a person in different ways, from physical disabilities to emotional difficulties.

  The brain is the “most complex organ” in the body – responsible for every part of your life. So, there’s so much that can go wrong when it gets injured. Living with an acquired brain injury can also present challenges you simply are not prepared for. You may need to make major changes to how you do things or where you live. And that comes at a cost in more ways than one.

  Physical effects:

  Often the most visible symptom of an ABI, the physical effects of brain injury can include weakness or paralysis; limited movement; poor balance and co-ordination; and tremors.

  Cognitive effects:

  ABIs can cause a person to forget things or lose their memory, either temporarily or permanently. Cognitive effects can also include issues with communication, perception or planning and undertaking the simplest tasks.

  Behavioural effects:

  In some cases, ABIs can change someone’s personality – including a loss of control over their behaviour, impaired social skills, apathy or irritability and aggression.

  Emotional effects:

  One of the most difficult, yet long-term implications of an ABI to spot are the emotional ones – such as anxiety, depression, frustration or even post-traumatic stress disorder.

• How do acquired brain injuries affect loved ones?

  If someone suffers an acquired brain injury, it’s only right that our focus should be on helping them recover and supporting their rehabilitation.

  But it doesn’t mean the impact of that injury on loved ones can (or should) be forgotten.

  It’s not easy to explain the emotional impact of acquired brain injury on families. Just as each ABI patient is different, so too are the effects on those closest to that person.

  That’s why we’re passionate about helping everyone touched by a serious injury to recover and rebuild their lives – not just with expert legal advice, but practical and emotional support too.

  Nicola Cooper is one of the people we helped with an acquired brain injury compensation claim:

  “Shoosmiths helped me out an awful lot. They’ve helped with my family – to get them to understand the situation and to help me with my rehab. They've been absolutely fantastic all through it, really.”

  Read more about Nicola’s story or watch her video:

  For families, our acquired brain injury support services can range from arranging specialist care to connecting you to experts in other teams – such as court of protection, conveyancing, wealth protection and family law.

• What are the symptoms of an acquired brain injury?

  It’s not always obvious when someone has suffered injury. Read more...

  It’s not always obvious when someone has suffered injury. Some acquired brain injury signs and symptoms are immediately clear – especially if it’s a traumatic injury, as you’ll usually see the event or incident that caused it take place.

  Some symptoms, however, may not show until days or weeks after the injury.

• How are acquired brain injuries diagnosed?

  For minor head injuries, it’s unlikely you’ll need to go to hospital or feel the effects for too long.

  Even so, it’s worth checking NHS guidance.

  If someone is involved in an accident or suffers a more serious head injury where they’re knocked out or show other noticeable symptoms like persistent vomiting, you should get immediate medical help – either by visiting A&E or dialling 999.

  At hospital, you might be asked some questions to help determine the acquired brain injury diagnosis. If there’s a chance the brain is damaged, you’ll have a CT scan to find out just how serious it is.

  This scan will provide a detailed image of what’s happening inside your skull and show if there’s any bleeding or swelling. But, as a UKABIF report points out, there are brain injuries “not easily seen on routine scans and may require Magnetic Resonance Imaging (MRI) for detection”.

  The Glasgow Coma Scale is also used for acquired brain injury diagnosis. This gives you a score between 3 and 15 depending on how serious your injury is – 3 being the most severe. The degree and duration of a coma may be helpful indicators of the severity of a brain injury.

  If a baby suffers a lack of oxygen before, during or after childbirth, medical staff will need to act quickly if he or she is showing signs of a hypoxic brain injury.

• How do you treat a brain injury?

  The treatment needed for an acquired brain injury (ABI) depends on its cause and severity, as well as the patient involved.

  It’s not often possible to predict for sure how long the process will take – or how much rehabilitation is needed.

  For ABIs, immediate treatment options can range from rest and over-the-counter pain relief for the mildest injuries up to complex medical or surgical procedures such as neurosurgery (brain surgery).

  As the patient’s condition starts to improve after this initial assessment and treatment stage, a more detailed and personal rehabilitation programme will be considered to meet an individual’s needs– covering areas such as emotional, cognitive, physical and behavioural recovery.

  It shouldn’t be forgotten that, while the health and recovery of the patient is paramount, loved ones can also be affected by the ABI and they need to understand the rehabilitation process and its objectives and that is where Shoosmiths can help – by supporting, explaining and working with you and your loved ones to claim the compensation you need.

• Why make an acquired brain injury compensation claim?

  Making a compensation claim for an acquired brain injury that wasn’t your fault isn’t all about money.

  No amount of money can turn back the clock or make up for the impact it has had, and will continue to have, on you and your family. What the money can do is make life easier.

  But while it won’t be the first thing on your mind during the recovery and rehabilitation process, the financial impact of an acquired brain injury is something to think about. Making a claim could be the only way to cover any treatment costs, lost income and to fund the ongoing care that you may need.

  A financial claim considers any future costs involved in coping with acquired brain– from providing transport to the supply of specialist equipment, home modifications or disability aids to ensure that your quality of life is maximised.

  If you choose Shoosmiths for your claim, we will do everything to ensure that you will get the emotional and practical support you need.

• What is involved in making a claim?

  A claim for acquired brain injury compensation goes through several stages before it’s settled.

  Some claims take longer to settle than others, but we always try to make the process as straight forward as possible by keeping you informed. We will work with you and your opponent who may be an insurer, the NHS Resolution or a defence organisation to get the best possible outcome. It means that we will always keep you in the loop, make sure you get the right rehabilitation options and try to resolve any dispute as soon as we can.

  1.  Get in touch: we’ll assess the prospects of success of your claim and if there are good prospects of success we can take your case on a No Win No Fee basis. We will also advise you on other suitable means of funding to include Legal Aid (if available) and existing insurance cover.
  2. One of our serious injury experts will take up your case, offering an unrivalled level of knowledge and expertise. This expert is also your point of contact throughout.
  3. We’ll contact the individual or organisation at fault for your injury and start gathering evidence.
  4. While we know it can cause distress, we will arrange for you to undergo independent medical examinations to learn the full extent of the ABI and the impact it will continue to have. We will also find out if there is a need for immediate treatment – as well as any ongoing care or rehabilitation needs that will need to be considered.
  5. If the other party accepts fault for your injury, we will request an interim payment of compensation to fund your treatment and care needs and to reduce your financial burden.
  6. Our specialist lawyers will work out how much compensation we think you should get.
  7. Many claims are settled out of court, but it’s important for us to start the court process. This is because it’ll give us a set time before a claim needs to be settled.
  8. By this point, we will hopefully know if your claim has been a success. If it has, you will then receive your compensation award – minus a ‘success fee’. If your ABI is due to medical negligence, we do not charge a success fee, however if we do not recover all of your legal costs from the opponent, there may be a deduction from your compensation to cover this shortfall. Our aim is for you to retain at least 75% of your compensation.
  9. A settled claim isn’t the end of our journey together. We’re here for you 24/7 after the claim is settled – continuing to provide the expert support you need when you need it.
• Will I have to go to court

  We work to achieve the best possible settlement for you and whilst most cases settle out of court, it is sometimes necessary to go to Court for a Judge to decide the outcome.

  If this happens, please do not worry we are experienced lawyers. We will manage the process for you and provide you with all the support you need.

  If you lack capacity under the Mental Capacity Act 2005 or you are under 18 any settlement that is agreed will need to be approved by a Judge at an Approval Hearing

• How much will I have to pay for making a claim?

  Most of the claims that we support are on a No Win No Fee basis and if necessary supported by an “After the Event” insurance policy to protect you from any costs liability. This means that if the claim fails, provided that you have complied with the terms of any agreement, you will not be responsible for any legal costs. We won’t recommend you pursue your claim unless we think it has a good chance of success.

  For more details about our no win no fee and why you might also want to consider "After the Event" insurance, please see our page on funding your claim.

• How long do I have to make a claim?

  There is a time limit for making a claim for an acquired brain injury, which is three years from the date of the accident or date of knowledge that you have suffered a significant injury.

  But if you’re starting a claim on behalf of a child, the three-year limit doesn’t start until their 18th birthday.

  If you did not have capacity as defined under the Mental Capacity Act 2005 before you suffered the acquired brain injury or you have lost capacity as a result of the acquired brain injury and as a consequence you are unable to make a decision for yourself under the Mental Capacity Act 2005 there is no fixed time limit for bringing a claim However, we would recommend investigating any claim as soon as possible.

• How much compensation could I receive?

  The amount of compensation you will receive will depend on whether the other party is found to be completely responsible for your injuries, the extent of your injury and the impact the injury has on your life and your ongoing needs.

  A claim for compensation will include a claim for:

  • the pain, suffering and loss of amenity caused by the injury. The government’s Judicial College Guidelines sets out how much compensation can be paid for the pain, suffering and loss of amenity due to suffering an acquired brain injury;
  • the financial losses and the costs you have incurred from the time of the injury to when the claim settles
  • the financial losses that you will have in the future (loss of earnings, pension loss) and the costs that you will have to incur to meet your future needs (cost of care and equipment, treatment costs, accommodation costs and adaptations to your home) as a result of the injury.

  As an example, £14.6m was awarded for James Robshaw after he suffered cerebral palsy following delays during his birth.

   

• What ongoing support can Shoosmiths offer me

  For us, the end of a claim is never the end of the story.

  We know there’ll be months and years of adjusting and adapting to life with an acquired brain injury – not only for the patient, but their families too.

  And we know this process can be hard to manage without the right help.

  From expert rehabilitation guidance to support managing a large sum of money, we’re proud of the ‘after claim service’ we provide – building lasting friendships with the people we help.

  Another aspect of ongoing support that Shoosmiths can provide is through their education law department. Their work focuses on children and young people with special educational needs. They secure the provision of education services to be funded by local authorities for children and young adults with additional needs. This is covered by way of Education, Health and Care plans. (EHC plans).

  Special educational needs covers a significant list of diagnoses which is not exhaustive. An acquired brain injury is covered on the list. To apply for an EHC plan, evidence will need to be provided to show that a child or young person has special educational needs, and, it may be necessary to secure special educational provision for them through an EHC plan.

  This provision will ensure that children and young people are able to learn and access the curriculum alongside their peers. As already noted, an acquired brain injury can have a significant impact on various aspects of a person’s abilities and behaviours. An EHC plan can assist in reducing the impact by securing relevant and required special educational provision.

  Education, Health and Care plans cover ages 0 – 25. An application for a plan can be made at any point within this age range. These plans are legally binding. The special educational provision that can be secured in this plan, includes, speech and language therapy, occupational therapy, physiotherapy, teaching assistants and specialist placements. This provision must be arranged and funded by the local authorities.

  The Education team at Shoosmiths can assist in applying for EHC plans and securing the provision within them. They can also ensure the EHC plans are worded correctly to ensure the plan is enforceable.

• Managing finances after a brain injury

  Often, it can be difficult to make decisions about the management of your own or a family member's personal finances following brain injury, as well as decisions about personal welfare and healthcare matters.

  During or after a successful compensation claim financial decisions may include such matters as employing a team of carers, arranging medical treatment and therapies on a private basis, buying and adapting houses, and purchasing specialist equipment.
  
  The Court of Protection was established to make decisions about individuals who do not have mental capacity to make the decisions themselves. This can be in respect of the individual's financial affairs and/or healthcare issues and can involve the Court appointing someone else, called a Deputy, to make those decisions on behalf of the person who lacks mental capacity.
   
  Deputies have serious responsibilities as well as a duty to make decisions in an individual’s best interests. Deputies are only empowered to make those decisions which they have been authorised to do so by the Court of Protection. Property and Affairs Deputies have a duty to keep accounts and keep the money and property of the incapable person, on whose behalf they are acting, entirely separate from their own.
  
  Anyone including a family member or friend, a solicitor or the local authority can be appointed as a Property and Affairs Deputy by the Court.

• Why appoint a professional Deputy?

  The Deputy has the responsibility of managing an individual’s compensation to meet their needs, by making decisions about matters such as providing care, appropriate housing, adapted vehicles, and therapies. 

  It is not unusual after a brain injury claim for the Court of Protection to appoint experienced Professional Deputies, such as solicitors to act.
  
  Dealing with the Court of Protection can be time consuming and stressful, especially when the family are also trying to provide care and support. Having an experienced and Professional Deputy on hand can prove invaluable in getting the best legal advice for the person lacking capacity and their family. Any court-appointed Deputy is obliged to maintain a high standard of care when making decisions.
  
  A Professional Deputy is also independent of the person lacking capacity, and so is able to make those difficult decisions that a family appointed Deputy would be uncomfortable making such as accommodation needs or refusing a request for money if it would not be in the person's best interests to grant the request.

   

• How can we help?

  At Shoosmiths we have a large dedicated Court of Protection Team and can offer a full, professionally managed Deputyship service.

  Appointing Shoosmiths ensures that there is always someone on your side who fully understands the legal procedures. If Shoosmiths has also dealt with the brain injury claim then this will be a seamless transition between the injury and Court of Protection teams, who work closely alongside each other. We can help to lighten the administrative burden and handle things like the completion of Court of Protection forms, preparation of annual accounts and liaison with third parties. We also ensure that funds are properly invested and managed and take care of the procedures for other application such as property purchases or applying to make a Statutory Will.
  
  As a Professional Deputy, we will always maintain a personal relationship with our client and their families whilst remaining professional. Our ability to balance the emotive nature of this work, the needs of our clients and the specific requirements of the Court means that we can arrange swift and effective progress in even the most sensitive and complex of cases.

   

   

• I think I have a case what should I do next?

  Need advice? Looking to start a claim? Unsure of your options?

  Let us help you make informed choices based on the knowledge of our wonderful brain injury specialists – working out of 10 offices around the UK, with well-established links to charities such as Headway, Child Brain Injury Trust and high quality treatment providers.