Legal Claims Process
Your solicitor will guide you through the legal claims process. Most claims of this type start with a protocol to encourage an early exchange of information. Your solicitor will write a letter claiming damages to the person or organisation responsible for your injuries, and the insurance company should then respond a few months later saying whether they accept they are liable to pay you damages or not.
Brain injury cases, particularly those involving children, may take many years to complete. It is very important that the true effect of the injury is known before the claim is finalised and so compensation can be accurately determined.
This means that it is likely that your solicitor will need to issue Court Proceedings. This involves lodging formal documents with the Court which set out the facts of your case, the legal basis of the claim and medical evidence about your injuries and a summary of your financial losses. These documents will be sent to the Defendant or their solicitors and they will respond with another document called the “Defence” which sets out their response to your claim.
The Court will then decide how the claim is to progress, through a process called “case management”. A judge will decide when evidence is to be exchanged, which experts need to assist the lawyers and the court to decide on the level of compensation you should receive, and importantly who should give evidence at a trial and when that trial should be. Commonly in cases involving child brain injury, a trial can be many years after the injury was sustained, but most cases do settle through negotiation without the need for a trial. If there is a trial it will be heard by a Judge and commonly you and your family will be asked to tell your story to the Judge, who will also hear evidence from appropriate experts.
From the start of your case your solicitor will put together a team of experts to help understand the injury and so that the right level of compensation can be awarded. The experts used vary from case to case but often include paediatric neuropsychologists, paediatric neurosurgeons, nursing care experts and Brain Injury Case Managers, Educational experts, occupational therapists, speech and language therapists, physiotherapists, architects and accountants.
If you have a good claim, or if liability is admitted or the court decides that issue in your favour, then you should not have to wait for all your compensation until the end of your case. Your solicitor will advise you about obtaining interim payments of compensation which can then be used to pay for your immediate needs such as medical and therapeutic expenses, support with education, the employment of a Brain Injury Case Manager, care and support, adaptations or purchase of property, wheelchairs, transport and equipment. If interim payments are available hopefully this will allow you to access rehabilitation and move towards improving your quality of life.
Author: Philip Edwards, Partner, Irwin Mitchell, Solicitors, Birmingham