Assessing the full impact of brain injury sustained by children in personal injury compensation claims can be challenging. Not least because unlike adults, they are still going through the various developmental stages. No one can quite predict how they might have functioned socially, academically or professionally in the future, absent any injury.
It can often take and, is indeed, necessary for such claims to take years to settle so that a meaningful evaluation can be made. However, when a child with a pre-existing neurological condition suffers a traumatic brain injury, it can complicate matters further. The defendants will almost in all such cases allege that their (the child's) pre-existing condition will have impacted their future progression, and any difficulties are due to that rather than the brain injury caused by their negligence.
Recent settlement
I recently settled a claim on behalf of a client who was a child when knocked down by the defendant. Liability was later compromised and approved by the court, but causation and quantum remained in dispute. An early settlement offer made by the defendant was rejected because it was not possible to assess my client's claim properly at that point.
Following the traumatic brain injury, there were issues with behaviour and concentration, fatigue, social functioning and sleep. It was necessary to assess and monitor progress until my client transitioned into adulthood. Rehabilitation, including neuropsychological support was arranged under the Rehab Code.
The ongoing difficulties were alleged by the defendant to be due to my client's pre-existing ADHD, rather than the accident-related trauma. There was a family history of medical conditions including ADHD. Both parties obtained a number of reports from experts in fields, including neurology, neuropsychiatry, neuropsychology, educational psychology, orthopaedics, and care and OT. Our experts accepted the pre-existing ADHD would have affected my client's educational abilities and ability to hold down a full-time job. However, the combined effect of the brain injury – diffuse axonal injury – had increased their vulnerability and there was a real risk that my client would not be able to function as well as they might have done otherwise.
Conclusion
The claim was of the utmost importance to my client, a young adult at the time of settlement and their family. By monitoring their progress during their crucial developmental and academic years, I was able to gather sufficient evidence on their pre- and post-accident performance. Obtaining the relevant expert evidence was key in arguing that my client's ongoing difficulties were in part due to their injuries.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
