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What is the Brain Injury Claims Process?

by Maria L. Searle
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what is the brain injury claims process

Sadly, head injuries are a major cause of death and disability in the UK. Every year, over 1 million people attend emergency departments in England and Wales with a recent head injury.

These injuries can be caused by road traffic accidents, medical negligence, sporting incidents and more. If your brain injury was caused by someone else’s carelessness or failure to uphold their duty of care, you may be eligible to make a brain injury claim. This can be done on behalf of yourself or someone close to you.

The claims process can seem complex but with the right guidance, you could secure the compensation you deserve.

Understanding Liability

The first step in any personal injury claim is establishing liability. This means proving that someone else’s negligence caused your brain injury.

Your lawyer will need to demonstrate three key elements:

1. Duty of Care: The responsible party owed you a duty of care to act with reasonable caution to avoid causing you harm.

This duty of care varies depending on the situation. For instance, drivers owe a duty of care to other road users, while hospitals owe a duty of care to their patients.

2. Breach of Duty: The responsible party breached this duty of care.

This could be through an action or inaction on their part. For example, a driver who disregards traffic lights and causes an accident has breached their duty of care.

3. Causation: The breach of duty directly caused your brain injury.

This requires a clear link between the responsible party’s actions and the harm you suffered.

Gathering Evidence

Building a strong claim rests on comprehensive evidence. Your lawyer will gather all relevant documentation to support your case, including:

  • Detailed Medical Records: These records will document the extent of your injury, diagnosis, treatment received and any ongoing medical needs.
  • Expert Witness Testimony: A medical professional specializing in brain injuries will assess the severity and long-term effects of your injury. Their expert opinion on the cause and prognosis of your injury is crucial.
  • Witness Statements: Statements from any witnesses to the accident who can verify the events and the circumstances leading to your injury.
  • Evidence of Lost Earnings: Documentation showing any loss of income due to your injury, such as payslips and tax returns.

Medical Assessment

A medical assessment by a qualified medical professional who specializes in brain injuries will form a large part of your claim. This specialist will evaluate the severity of your injury, its impact on your daily life, and any potential long-term consequences.

Within this assessment, they will look at cognitive function involving any changes in your memory or concentration, as well as physical functioning that covers your mobility and coordination. They will also consider any psychological impact, such as emotional distress or mental health issues like anxiety or depression.

The result of this assessment will help determine the extent of your current and future needs, which will influence the value of your claim.

Negotiation or Litigation

Most brain injury claims are settled out of court through negotiation with the at-fault party’s insurer. Your lawyer will negotiate on your behalf, aiming to secure a fair and reasonable compensation package that reflects the severity of your injury and its impact on your life.

However, if a satisfactory settlement cannot be reached through negotiation, your lawyer will speak to you about pursuing litigation. This involves taking your case to court and presenting your claim to a judge. While litigation can be a lengthy and complex process, it may be necessary to secure the compensation you deserve.

Compensation

A successful brain injury claim can secure compensation for various losses you have suffered.

Compensation is usually split into general damages (intangible losses) and special damages (tangible losses).

These cover the following:

  • Medical expenses
  • Loss of earnings
  • Rehabilitation costs
  • Pain and suffering
  • Care costs

General damages such as pain and suffering will be determined in line with the Judicial College Guidelines.

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