Brain Injury

When someone becomes brain injured due to an accident or a medical condition, they sometimes need assistance in making decisions.  These decisions can relate to the conduct of a personal injury claim and also the management of their own financial affairs.  They will probably have bills to pay and if they have received a settlement after a claim, monies to invest and manage.  If they are lucky they will have a partner, relation or close friend that will be able to help them.

Whether someone suffers from mental incapacity such that they need assistance is an issue that is ultimately decided by a medical practitioner.  If someone is said to lack mental capacity and has not made either an Enduring Power of Attorney or a Lasting Power of Attorney, then the family or the next of kin should be looking to part of the court system known as the Court of Protection to manage the funds. 

Unfortunately, the procedure is unwieldy, longwinded and expensive.  It does not discriminate between small funds and large funds in relation to the procedure. 

It is necessary for either a professional person or a family friend to be appointed ‘deputy’ for the person concerned.  The deputy then takes responsibility for managing the funds subject to the supervision of the Court of Protection.  The deputy is required to make an annual return showing income and expenditure.  The deputy is then able to manage the investment of funds subject to the approval of the Court of Protection.

My firm is happy to deal with Court of Protection matters for our clients.  Either we advise deputies or we are appointed professional deputies ourselves.  If you go on to the Court of Protection or ‘Office of the Public Guardian’ (the administrative adjunct to  the Court of Protection) web site and look at the forms required for the various things you will need to do as deputy, you will see the complexity and detail required for sometimes quite minor amounts of money.  If you look a bit further you will also see that every time you make an application to the Court of Protection in most cases there is a fee payable of £400.  This has to be paid from the protected person’s own funds.  A supervision fee is also charged which is payable annually.  In addition the Court often requires the deputy to take out a fidelity bond to cover the risks of the fund being mismanaged or dishonestly depleted.

When you look at the size of the fees and charges and take into account that some of the estates are relatively small, both the procedures and the amounts charged are definitely disproportionate.

Delays also occur as any funds have to be paid into a separate body, the Court Funds Office, which has another layer of administration and seemingly little direct supervision by and communication with the Court of Protection.

I am dealing with a case as professional deputy where settlement was reached in May 2010.  Not unreasonably, the Client wishes to purchase a property that is more suitable for him to live in than his current home which is rented from a Housing Association.  We made a prompt application for the appointment of a deputy and followed this up swiftly with an application for funds to be released in order to fund the purchase of the property.   At the time of writing, some four months later the funds still remain in the Court Funds Office despite all the forms being dealt with and a great deal of time being spent on what is essentially administrative work.

Surely there is a better way of doing things?  I should be interested to know if others are experiencing the same problems and frustrations in setting up a regime designed to protect a person’s finances yet at the same time enabling them to have access to the those finances in order to improve the quality of their life?

The nice sunny evenings have been an incentive to get out for a ride on my motorbike.  It is always good to have somewhere to ride to and at H Café near Dorchester on the A4074 they do a good cup of coffee and there are always plenty of other bikes to admire on a Monday evening in the summer.

On my journey I was amazed to see others out on bikes wearing such inappropriate clothing!  There were men in shorts and girls wearing ridiculously flimsy sandals.  Admittedly it was very hot still, but with the wide variety of winter and summer clothing now available which carries more protection I was surprised at the recklessness of these riders.

As a personal injury lawyer, of course I had in mind the principle used in cases of failure to wear seat belts.  If it is found that this failure makes a substantial difference to the injuries, i.e. that they would have been either non existent or substantially less, the total sum of damages can be reduced by either 25% in the former case, or 15% in the latter.

Whilst I do not think there is a case that makes similar provisions for such “contributory negligence” in the failure to wear protective clothing, it is certainly the case that in my experience Defendant insurers will argue that damages should be reduced because by the wearing of protective clothing the injury would have been prevented or reduced.

In one of my cases that went to trial, the trial judge suggested that there should be an extension of this principle such that the Judge should have a discretion to make a larger reduction than 25% in appropriate cases.  Because of this unhelpful indication, the insurers decided to take the award to appeal to see if they could have it reduced.  Eventually we struck a deal with them on good terms, such that they withdrew their appeal.  Notwithstanding this, I am aware that some insurers have misleadingly tried to use this case (Hitchens v Berkshire County Council) as a precedent to suggest that the trial judge has a complete discretion.

I was therefore pleased to read in the case of Stanton v Collinson [2010] that although there might be unusual cases in which departure from the two standard reductions might be contemplated, generally the two brackets are still appropriate.

I was glad to see that the insurers were defeated, but I think it would be unfortunate if bikers played into their hands by failing to get kitted out in the correct gear.  Most safety literature recommends as a minimum padded gloves, protective boots, motor cycle leathers or equivalent protective clothing, and of course an approved safety helmet.

Even on a hot sunny evening you can still look cool and arrive safe.

Although I retired as the Chair of the Headway Oxford Management Committee in November 2009,  I am still running an active specialist brain injury personal injury practice from the offices of Charles Lucas & Marshall in Wantage, Oxfordshire.

I have been conducting personal injury claims for brain injured victims for almost 20 years.  In fact,  it was my first large case that encouraged me to attend a lecture given by Professor Derick Wade and this led to becoming acquainted with Headway Oxford!  Since then I have found my involvement with the work of Headway Oxford both at the day centre and in connection with community support work to be invaluable in terms of referring clients and sharing signposting information.

The needs of brain injured clients are quite different to the needs of other injured clients and it is very important to communicate with the family with understanding and knowledge of the bewildering predicament they first find themselves in.

During the last 6 months,  I have settled 3 large cases.

The first involved a claim for clinical negligence because the NHS had failed to deliver a distressed baby in time and she had been born with the condition termed cerebral palsy.   Such was that family’s shock and isolation that they did not obtain legal advice until their daughter was 17!  It is useful to know that claims are not barred until 3 years after a child turns 18 (until they are 21) and in the case of people deemed to lack mental capacity there is no time limit running against them.  A very large settlement has enabled the family to rehouse themselves in spacious adapted accommodation and the provision of a lump sum and annual periodical payments mean that there will never be any problem in obtaining and providing the latest technology aids and appliances to make life a little easier.

The second case involved a road traffic accident and very unusually the defendant driver, while admitting he had been at fault for the collision, suggested through his insurers that the collision was not responsible for the totality of our client’s injuries.   It was suggested that my clients lifestyle meant that at the time of the accident he was developing a condition known as Wernicke Korsakoff’s Encephalopathy which was responsible for the same kind of cognitive impairment one sees with a traumatic brain injury.  There was much argument in this case between neuropsychologists and neuropsychiatrists but in the end a substantial settlement was negotiated which will enable my client to rehouse himself and his family and to buy in such case management and support work as will help him live a more fulfilled life.

The third case also involved a road traffic accident where a young man sustained traumatic brain injury shortly after leaving school at age 18.  It is always difficult in these cases to project how the future loss of earnings might be calculated.   A young person might move jobs and indeed career a couple of times before settling down.  The lawyer’s role is to talk to the family about pre-accident aspirations, look at qualifications and what was actually earned prior to the accident and perhaps also take into account the occupations and earning levels of other members of the family.

As you have probably gathered in all this work a high degree of consultation with the family is essential and given that the prognosis is rarely clear with brain injuries before around 2 years, most cases involve a fairly long ongoing relationship of  trust.

Michael Berrett

PS

The statistics tell us that those most vulnerable to traumatic brain injuries are young men in their late teens or twenties.  I was interested to see that the road safety minister has announced new safety ratings for motorcycle helmets.  As fellow bikers, this is also of interest to Jamie Millar and I.

SHARP is the department of transport’s safety helmet assessment and rating programme.  All the ratings have been published on its new website which has been overhauled to include more information for motorcyclists on how to found the right helmet.  The site also includes demonstrations of the tests and how to ensure that a helmet fits properly.  The ministry estimates that 50 deaths could be prevented each year if all riders wore the safest helmets available.  The new SHARP website can be found at www.direct.gov.uk/sharp

I went to a conference for PI Lawyers recently was pleased to see there was a session about liability for work equipment.

I have had two cases recently involving falls from ladders.  In both cases my clients were using ladders supplied for work purposes.  One case involved a decorator working for a firm of builders; the other, a safety net rigger.  In both cases the employer’s insurers had alleged a high percentage of contributory negligence.

The Provision and Use of Equipment Regulations (PUWER) 1998 imposed an almost absolute, liability on the employer for injury provided the equipment was supplied to be used at work.

Three cases were discussed that had been decided by the House of Lords:  one concerned a defective ladder supplied to access a sleeping bunk on a North Sea Oil Rig; the other, a door closing mechanism attached to a control room door, and the third, a ramp provided by a third party so that a wheelchair user could access her home.

It was only in the latter case (Smith –v- North Hants CC) that the House of Lords held the employer had insufficient control over the equipment and by a majority the appeal was dismissed and the Claimant unsuccessful.

Surely the County Council must have had deemed knowledge of the ramp and also the ability to influence its use – was this not enough?  This decision seems to be made on the basis of public policy to put some limits on employer’s liability for apparatus employees might encounter and become injured while using.

Contact: michael.berrett@clmlaw.co.uk

What is brain injury?

Injury to the brain can be caused by an external physical impact such as might arise out of an accident at work or road traffic accident. It can also be caused by medical conditions – illnesses which restrict or prevent the flow of oxygen to the brain, e.g haemorrhages and haematomas. It usually involves a loss of consciousness which may last from just a few moments to weeks, sometimes months and even longer. A more minor brain injury that does not initially result in loss of consciousness or require hospitalisation is capable of leading to temporary or permanent damage to the brain. Injury to the brain can be inferred from a loss of consciousness but also identified from CT and MRI scanning.

Why are some brain injuries overlooked?

In the case of multiple physical injuries, unless there is a fractured skull, the treating clinician’s attention is usually upon the physical injuries themselves. Sometimes after a road traffic accident there may be record or recollection of momentary loss of consciousness but again all the attention is usually upon the physical injuries and fractures. Hence there is a significant proportion of brain injuries that are not identified prior to discharge from the initial treating hospital or doctor.

What are the effects of brain injury?

Brain injuries affect people in many different ways. Sometimes symptoms are first noticed by relatives or friends long after the injured person has discharged from medical care. Symptoms usually fall into some or a combination of the following categories:

• Seizures, headaches, weakness of one or both sides, fatigue
• Impaired balance, speech, hearing and visual problems
• Impaired reasoning, memory, difficulty reading and writing
• Emotional instability and behavioural problems

What should I do if I think I might have sustained a brain injury?

The above symptoms warrant a consultation with the injured person’s GP. This might result in referral to a Consultant Neurologist. Tests undertaken by the Neurologist may include x-ray, CT scanning or MRI scanning. In addition a history will be taken from the injured person and possibly their spouse, partner or a relative.

What treatment is likely to follow?

There are surgical procedures that will remove pressure on the brain and remove damaged blood vessels in the more accessible parts. Usually the clinical response to brain injury is of a medical or cognitive nature.

Fitting, epilepsy, severe personality disorder and psychiatric conditions caused by brain injury are normally treated by drugs. These might include anti-convulsant drugs or anti-depressants.

Impairment of concentration and attention can be tackled by a whole range of mental strategies and aids to memory. These techniques sometimes have to be “re-learned” at a rehabilitation centre. Rehabilitation centres specialising in brain injury are few and far between. Cognitive therapy may be offered through a Consultant Neuro-Psychologist. A Neuro-Psychologist is a Psychologist who is experienced in dealing with brain injury. Family and friends are then invaluable in assisting the injured person to persevere in learning the strategies offered.

What support is available post-discharge?

Brain injury units may have specialist social workers attached to provide post-discharge support. Otherwise the experience of social workers is likely to be limited.

There are support workers in the community and there are day centres for brain injured people. These are most likely to be provided by the voluntary sector. In particular the national charity Headway has a network of branches some of which have outreach workers that provide contact information advocacy and some rehabilitation services for brain injured people in the community.

Will I be able to go back to work?

Even a brain injury of minor severity is likely to cause a period of absence from work. If this is prolonged it may result in the loss of a job or loss of place in the market (if self employed). Sometimes the brain injured person will never be able to regain their pre-accident earning capacity. Cognitive impairment may mean that they will have to re-train and take on less demanding employment or sometimes therapeutic employment. The effect is of course to deprive the injured person of the income they require to support their family or meet their financial responsibilities.

Is there any help with vocational rehabilitation?

Of course there will be a huge sense of frustration and loss of self esteem. Sometimes the brain injured person is so severely impaired that they are unable to plan activities of daily living themselves and also become in danger of getting lost. It is not easy to obtain an adequate package of support and care from the PCT in these circumstances. There are specialist professionals known as brain injury case managers but they are little used by the NHS. Such care comes at a high price.

Can I make a claim for compensation?

If there is evidence that the injury was caused through the fault of another, then it may be possible to obtain financial compensation for the brain injured person. A specialist brain injury solicitor is able to advise whether the evidence of negligence is sufficient to establish a viable claim.

What about medical/clinical accidents?

Medical accidents or mishaps or more difficult to analyse. A specialist clinical negligence solicitor is able to call upon specialist medical experts in order to determine whether the Courts might make an award in these circumstances.

What is a specialist brain injury lawyer?

It is not always clear at the outset that legal action is appropriate. It is however always in the best interests of the injured person and their family to consult with a lawyer who specialises in brain injury at the earliest opportunity. Brain injury claims require “bespoke” handling. Large firms that advertise for injury work generally are less likely to be equipped to deal with the time and attention to detail that is required in these specialist cases. Often the future condition will not be apparent early on. It is sometimes necessary to wait for some time before there can be a certain enough prognosis upon which a lawyer can begin to calculate appropriate award damages. The services of independent medical and independent non-medical experts will be drawn upon to identify the individual client’s needs and cost these accurately into the future. Past expenses and losses and future expenses and losses will be included. Most claims are eventually settled by negotiation. A small percentage are determined in the Civil Courts. Owing to the length of the process the best outcome is to ensure that a client has a good working relationship of trust with their lawyer.

How are compensation awards calculated?

Planning for care for the rest of the client’s life, predicting the financial costs etc is a complex matter. Each case must be examined individually. Thought must also be given on how to best to structure the financial management of any award. The factors that will determine the award will include the amount of past and expected future income loss, the amount of past and anticipated future care; the degree of impairment of physical, mental and emotional enjoyment of life.

How can my claim be funded?

When dealing with a claim to replace earnings, income or provide funding for future care, it is important that no corners are cut. Cases such as these are very labour intensive. Legal costs are normally awarded in addition to any sum of compensation. However the claim has to be funded from the outset and in the meantime may involve substantial payments to third parties for expert reports, Court fees and Barrister fees etc. The specialist solicitor will discuss with the Client whether the Client might have any legal expense insurance to cover the investigation and pursuit of the claim. Alternatively, depending upon the strength of the claim and the chances of success, this firm offers “conditional fee agreements”. These are sometime known as “no win no fee” agreements. The effect is to defer payment of legal costs until the conclusion of the case. If the case is unsuccessful then normally legal costs are waived. If it is successful, then costs are settled at that stage. Normally the majority of legal costs are recovered from the party at fault in addition to the compensation. Public funding, (legal aid), is no longer available for any personal injury claim but it is available for clinical negligence claims.

Why should I have confidence to instruct Charles Lucas & Marshall?

These are some examples of our past cases:-

We acted for the claimant in a case which involved an employee of a roofing company. He feel through an unmarked sky light in the roof of an industrial building. He suffered multiple injuries including a brain injury. He has been able to return to employment as a horticultural worker. He is however left with permanent mild cognitive impairment. A six figure sum in damages was obtained.

We acted for an entire family involved in a road traffic accident. Their car was in collision with a vehicle which had suffered a tyre “blow out”. The blow out was caused due to a manufacturing defect in the tyre. The whole family recovered compensation. The mother who was the front seat passenger sustained the most serious injuries including facial disfigurement and a brain injury. She continues to suffer from permanent cognitive impairment. A six figure sum was awarded by way of compensation.

We acted for a young lady who suffered a brain injury at her birth. This was due to the hospital trust’s negligent management of her labour and delivery. An interim payment was obtained which funded the purchase and adaptation of a suitable house and the commencement of a privately funded care regime. The ultimate award exceeded £6,000,000.

Contact: michael.berrett@clmlaw.co.uk