Brain Injury - The Waiting Game

In 2004 the Court approved two settlements for clients both relating to catastrophic brain injuries. One, a resident in the Isle of Man, arising from a road traffic accident in February 1999, for £5.4 million. The other, for a child who was a pedestrian who suffered injuries on the 22nd May 1989, for £5.6 million.

There are some similarities between the cases but the striking difference is the time it took to bring both cases to settlement. The first case took 4 years from the date of accident to settlement and the second case 14 years.

The principal cause of the considerable difference between these two cases was the age of the Claimant at the date of injury. The difference relates to the problems of severe brain injury in children.

In such cases the legal advisers, and the Court, have to give the infant Claimant time to travel through adolescence and maturity. Only at that later stage can those advising the Claimant put before the Court a measured view of the Claimant’s likely long term future.

When brain injury occurs in relation to a mature adult the consequences are varied but commonly include:

· Poor memory
· Lack of insight
· Problems with planning
· Comprehension and communication
· Poor concentration
· Poor perception
· Recognition and judgement
· Inappropriate behaviour
· Cognitive problems.

When the brain injury occurs in relation to a child similar consequences ensue with two additional significant problems. Commonly, the lack of insight is more marked. The Claimant, having suffered a brain injury at such a young age, has no perception, recollection or concept of life prior to the brain injury which appears to aggravate the lack of insight. Secondly the high level of lack of insight brings with it many attendant difficulties centred on a lack of judgement such as:

· Inability to make rational decisions or to act responsibly
· Inability to discern danger
· Vulnerability to others.

Substantive legal awards are based on future losses. In a large award of damages only a small proportion, maybe 20% to 25%, relates to past losses. In the Schedule of Loss document presented to the Court the anticipated future losses make up the huge bulk of the award. The Schedule of Loss is based on medical evidence which has to predict issues such as:

· Will the Claimant gain employment or partial employment in the future?
· What level, type of care and supervision is required on an ongoing basis?
· Will the Claimant always be subject to the Court of Protection and the attendant costs of receivership?

It is extremely difficult to predict these outcomes with any certainty when considering a child of adolescent years or younger.

In the second of the above cases, which involved a child, the Claimant had previously resided with family members and enjoyed a reasonable level of function and quality of life. As the Claimant matured into adolescence he became increasingly difficult to control which resulted in problems with the Police. Eventually he had to be removed to a place of safety. From there a residential placement was tried and several care regimes tested in the community.

It is the responsibility of the Claimant’s lawyers to provide the Court with the relevant evidence to enable it to assess the Claimant’s likely future needs so that the correct level of damages can be assessed. In a child with a severe brain injury it is not possible to obtain any accurate snapshot of future life until the Claimant has reached some maturity. This means in the very severe cases it can sometimes be necessary to wait years to see how the Claimant develops.

The Courts Act 2003 is pending and will introduce Periodical Payments in substitution for a lump sum for future losses. The Act provides that the amount of the Periodical Payments may be varied in the future. Until the criteria for variation is clarified, and subject to judicial comment, it is difficult to know the extent to which Periodical Payments may bring a partial solution to this problem and protect the Claimant from changes that may occur in later life.

Courtesy of Pannone & Partners Jun 05.