Brain injury is an unknown to many and even more so where the person injured is a child. Not only is it an unknown to loved ones, it can often be an unknown to the legal team instructed to deal with any compensation claim that may arise. As a result, this can and does unfortunately often lead to claims be settled too soon and for too little.
Living with a brain injury is difficult, for both the injured and their family and friends. Whilst always devastating, when an adult suffers a brain injury, the comparison with the person before is more easily made. From an objective legal perspective it is more straightforward to make an assessment of damages for an adult who has sustained an acquired brain injury. In general it is important to wait about two years post-accident to ascertain the level of recovery, particularly if high quality rehabilitation and support is available, but thereafter, any further significant recovery is unlikely and a reasonable prognosis for the future can be made.
However, what about the child who sustains a brain injury at a young age? Can a proper assessment only two years post accident be made? The answer is generally no. Brain injury in a young child is very much a hidden disability. More often, filled with relief that their child has survived, parents are often delighted that their son or daughter seems well on the road to recovery, albeit a little less able at school than they used to be or less tolerant of their siblings. Their child may not seem to be as they were before the accident, but often this is seen as a normal part of growing up. Whilst that may be so, often the brain injury will be playing a part and problems can become increasingly evident. Consequently, as a general rule, caution on settlement should be exercised, unless the brain injury so mild that experts are willing to say with a good deal of optimism, problems are unlikely to arise in the future.
A child must never be labelled and the brain injury should not be allowed to become some form of self-fulfilling prophecy, but claims should not be settled, save in exceptional circumstances, until the experts are reasonably confident in providing a long term prognosis. During the ‘wait and see’ period, claims should not gather dust, but active rehabilitation and support brought in wherever possible.
The risk of settling too soon and for too little is no more apparent than in a matter in which I continue to act for a child, who is now on the verge of young adulthood, but sustained a brain injury at less than 6 months of age. To begin with, as would be expected the focus was on the physical injuries sustained. The brain injury was not life-threatening and is so often the case, the child responded rapidly to treatment. In the years post accident and into early school years, there was nothing significant to report. Some subtle cognitive deficits were starting to emerge but these possible red flags were not being picked up by the legal team then acting.
The insurer offered to settle the claim at what was seen as an attractive sum. The litigation friend was advised to give it careful thought. Instead the litigation friend picked up on the possible red flags and decided to come to Anthony Gold. On taking over the matter, it was evident my client had sustained a severe brain injury in the accident, but from which he seemed to be coping well. He was 9 years of age and the evidence only suggested some subtle difficulties. However, experience indicated there was a risk that issues would emerge as my client progressed through adolescence. I advised against settlement and the litigation friend took the advice. This was the right advice. My client has had increasing problems as suspected, which have necessitated significant case management and support. Interim payments have already far exceeded the level of the original offer and he is now within a specialist educational setting to secure his post-16 education and assist with his transition into adulthood, all funded through the claim. He is likely to be compromised both in his employment capabilities and also his ability to live independently as an adult. He is most likely going to require life-long case management and support and could well require a Deputy for life to manage his financial affairs.
If my client’s litigation friend had accepted the offer made when my client was 9 years old, where would he be now? He most likely would not have received the support he has received and quite possibly in a far worse place than he is now. More importantly he would not have sufficient funds to meet his likely long term needs.
It is always a worry that some solicitors do not understand the nature of these claims and press on with attempting to conclude them as quickly as possible. This is perhaps understandable when there is so much pressure to earn fees. However, where a claim involves a child with a brain injury, it is vital to take a step back, and ask the question – can the experts say with a good degree of confidence that problems are unlikely to emerge in the future? If the answer is no, then the claim cannot be settled. Any practitioner who takes such a claim to settlement, without allowing the child to develop, runs the risk of a professional negligence claim many years later.