Brain Injury Claims

An acquired brain injury refers to damage to the brain which occurs during or after a person’s birth. It can be suffered at any stage in life. The description ‘acquired’ distinguishes it from brain damage which occurs before or during birth.

An acquired brain injury can be caused by traumatic injury to the head or may have a medical cause, such as lack of oxygen to the brain.

There are strict time limits for bringing a negligence claim for injury in England and Wales. This is called the limitation period.

For adults, the usual rule is that a claim must be formally started at Court within three years of the date the negligence occurred, or of the date on which the injured person should reasonably have been aware that there might be grounds to bring a claim (if that date is later).

Where a child is injured by negligence, they usually have until their 21st birthday to formally start their claim at Court.

Where the claim relates to someone’s death, the limitation period is three years from the date of death or from the ‘date of knowledge’ (if that is later).

There are circumstances in which the rules differ; for example, where the claim is for someone who does not have mental capacity to bring a legal claim.

It takes time to investigate a claim, so you should contact us as soon as possible.

If a claim relates to injuries suffered by a child or an adult who does not have ‘mental capacity’; a family member (or other trusted person) can act as a ‘Litigation Friend’ and bring the claim on their behalf.

If you are unsure about whether you can bring a claim on someone else’s behalf, we will be able to advise you.

We start by obtaining evidence such as medical records, accident reports, witness statements, and expert evidence to prove that the injury was caused by negligence.

We also calculate the amount of compensation that can be claimed.  Typically, this involves instructing experienced experts to advise on the injured person’s needs, in order to maximise the level of compensation.  We then try to reach a financial settlement with the Defendant (the individual or organisation legally responsible for the injury) or their insurer.

In some cases settlement is agreed at an early stage.  In other circumstances, it may be necessary to begin Court proceedings.

Probably not.  The vast majority of personal injury and medical negligence claims are not decided by the Court.  Occasionally, the Court will decide a case, if it cannot be resolved any other way. If the case has good prospects of success then the Defendant will usually want to settle the claim without a trial and both parties are obliged to explore all settlement options including Alternative Dispute Resolution and Mediation.

Successful claims are usually resolved by agreeing a settlement either before or during formal Court proceedings.

Where the claim is for a child or for an adult who does not have mental capacity, the Court will be asked to consider and approve the settlement. This is a safeguard required under the Court rules to ensure that the settlement is in the best interests of the injured person. The court hearing that concludes such cases is called an “Approval Hearing”.

• Private round-the-clock care
• Private therapies and medical treatment
• Specialist equipment and vehicles
• Adapted accommodation
• Support with education or work (if that is possible for the injured person)
• Compensation for loss of earnings and pension
• Compensation for losses in self-employment

We regularly use leading experts and barristers to assist in identifying all aspects of an injured person’s needs.

If an adult has ‘mental capacity’ to manage the compensation themselves, it will be paid to them.

If they do not have ‘mental capacity’ to manage their financial affairs, a professional ‘Deputy’ is usually appointed to manage the compensation on their behalf and to act in their best interests.  The Deputy will release funds to ensure that the injured person’s needs are met in an appropriate way.

See Kingsley Napley’s Court of Protection and Deputyship page for further details about the role of a professional Deputy.

Medical negligence and personal injury claims typically involve detailed investigation and expert evidence. They often take several years to resolve.

Our approach is to seek an admission of liability (i.e. confirmation that negligence occurred and caused injury) as early as possible in the process.

When liability is established, the Defendant usually has to pay part of the compensation immediately. This is known as an Interim Payment. This allows the injured person’s needs to begin to be met while the work to quantify the full amount of compensation continues.

Conditional Fee Agreements (known as ‘no win, no fee’ agreements) are the most common way that the medical negligence claims we undertake are funded. This gives clients the reassurance that they will not (in almost all cases) have to pay any legal costs in the event that they are not successful with a claim. We will explain all possible funding options with prospective clients.

Please see our page on How are claims funded?

Medical records are usually the starting point for our investigation of a claim. With your permission; we request these records directly from the treatment provider(s).

Our clients sometimes wish to obtain copies of the medical records themselves before deciding whether to begin a claim. Please see our Guide to Accessing Medical Records for further information on how to request records.