Types of compensation in brain and spinal injury cases
Posted on: 30/10/2020
When dealing with a claim for somebody who has suffered a brain or spinal injury, or any other serious injury, there are many types of compensation which lawyers acting for the appropriate person should be considering.
It is important to remember that it will be for the Claimant to prove fault on the part of somebody else before any damages are payable and, thereafter, it will still be for the Claimant to prove that he or she is entitled to compensation for any type of loss.
The following represent most of the types of compensation available, but this is not an exhaustive list.
Pain and suffering and loss of amenity
Inevitably, anyone involved in such an accident will suffer an enormous amount of pain and will probably continue to do so for the rest of their life.
Such awards are made on the basis of guidelines provided by a body called “The Judicial College” but also case law which has evolved over a number of decades. Awards are not fixed and each case will stand on its own facts and the evidence. No two cases are the same. In my opinion, awards in this country are pitifully low and in need of review. For example, the highest award for the most severe type of brain injury or spinal cord injury is £380,000.
Loss of earnings
Most individuals who have suffered a brain or spinal injury and who were either in wok at the time of their accident or negligence or were intending to work at some stage in the future will have an impaired ability to work.
Calculating loss of earnings can be a relatively simple exercise when somebody has a long history of steady employment and a clear career path. The exercise is rather less simple when looking at somebody who has perhaps only recently entered the labour market or changed jobs on a number of occasions. Credit has to be given for any earnings a Claimant has been able to achieve since the date of the negligence.
Claimants are also entitled to claim for any loss of earnings that they will incur for their future career. Again, this can be rather difficult to predict, especially where somebody has a long life expectancy and would have, but for the negligence, been able to work for a number of years. There are complex actuarial tables which assist lawyers and their clients when making calculations.
Sadly, most people who have suffered catastrophic injuries will require help and assistance to some degree in going about their ordinary daily lives and also help with things such as gardening, DIY and car maintenance, which they would have been able to do absent an injury. Very often, care and assistance will be provided by friends and relatives on a gratuitous basis but those friends and relatives are entitled to be reimbursed for the amount of time they have put in. In serious cases, professional care is often required and this can be extremely expensive and needs can often be lifelong.
Connected to this type of compensation can be a need for a person called a “case manager” who I often describe as a type of “captain” who will ensure that carers and those providing help for a Claimant are acting appropriately.
Medical treatment and therapies
Almost inevitably, those who have been unfortunate enough to suffer this type of injury will require some type of medical treatment. Of course, the NHS in this country provides a substantial amount of care but sometimes medical treatment and care is not available on the NHS, or if it is available, there may be a very long waiting list. Therefore, it is possible to claim for private medical treatment where needed. However, other types of therapy may be required, such as physiotherapy, speech and language therapy, occupational therapy and music therapy. All of these things ought to be considered on an individual basis.
Aids and equipment
In most cases I deal with, Claimants will require aids and equipment to assist in their daily lives. This covers an enormous range from the most basis items such as kitchen utensils enabling an injured person to cook or prepare meals for themselves or basic fitness equipment like a gym ball to aid with recovery to an electric wheelchair.
Quite often a person will be injured and the accommodation in which they live is simply unsuitable for that person owing to their injury.
Often people will require single storey accommodation or the property in which they live will require adaptations.
Up until recently, case law decided almost half a century ago has made claims for purchasing alternative accommodation extremely difficult and problematic, but a welcome Court of Appeal decision has paved the way forward for Claimants to recover a reasonable amount of compensation to enable them to purchase alternative accommodation.
Watch this space for further information in that regard!
People who have been injured in an accident are entitled to go on the type of holidays they would have expected in the absence of an accident or negligence. However, this can involve great cost to a Claimant both in terms of the type of accommodation they need or possibly having carers accompany them on holiday. Claimants should look to recover that type of compensation.
Just as Claimants may require special accommodation to satisfy their needs, they may require a particular type of vehicle to ensure that they can get around. This is something that must always be considered.
Very often Claimants will benefit enormously from having various types of assistive technology to help them have the best quality of life of which they have been deprived as a result of somebody else’s negligence and specialist expert evidence will be required in this regard.
Court of Protection costs
In some cases, particularly relating to those who have suffered a brain injury, unfortunately an injured person may not be able to handle their own affairs and finances. In those circumstances, a body called the Court of Protection become involved and a person known as a “Deputy” will be appointed to handle that person’s affairs. That can be an extremely costly exercise which also ought to form part of a claim.
One should never forget the minor expenses such as things like travelling to and from hospital, purchasing minor items and suchlike. They may not make a huge difference in the overall scheme of things, especially in cases involving millions of pounds, but sometimes they can get across to the other side and a Court the enormous inconvenience somebody has been put to as a result of negligence.
How are damages paid?
Traditionally, people have received a one off lump sum of damages as a final settlement. Indeed, that is still the case in many of the claims we deal with. However, in some cases where there are ongoing losses, it has been possible for a number of years now to have part of the damages paid by way of periodical payments on a regular basis for the future. This is particularly so where somebody has ongoing care needs for the rest of their life because the cost of care has been going up quite significantly and periodical payments will ensure that an injured person will have all of their care needs met for the remainder of their life. The disadvantage of a lump sum is that the money can run out and if it is paid on a full and final basis, it is not possible to go back for further compensation.
The method of payment does have to be considered very carefully when settling a case.
Every year, our Accidents & Injuries team recover over £10 million in compensation for serious accidents such as head and spinal injuries, accidents at work, road traffic accidents and clinical negligence. Get in touch with the team today on 0800 2800 421
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