Legal Position on Brain Injury in the UK and the USA
by Joanne Berry
In England and Wales the general attitude with regards to compensation for all personal injury claims, is that the compensation should aim to help the injured person return to the position they were in before the accident.
An injury claimant is entitled to an award for their suffering, pain, and loss of amenity which is assessed by guidelines, similar cases and their own personal circumstances. Expert evidence will be called from experts across a wide range of medical and non-medical fields to assist with this claim.
Financial losses that occur as a result of the injury are usually provided for and an individual’s out-of-pocket expenses including loss of earnings, medical expenses, treatment, accommodation and equipment needs are paid for.
Both past and future financial losses are taken into account. The largest element of an award for a brain injured claimant is normally the cost of their future care whether this is to be provided in the home or other setting such as a rehabilitation unit.
Rehabilitation is an important focus within the British compensation process. There is a code of practice which encourages claimants and defendants to work together and look closely at the injured person’s rehabilitation needs. The law across England and Wales is consistent but Scotland and Northern Ireland do have slightly different legal systems.
If an individual is injured in a road traffic accident we have provisions to ensure compulsory insurance and the Motor Insurers Bureau acts as a fallback to compensate victims of uninsured or untraced drivers.
Awards can be made either as a lump sum or a periodical payment which provides an annual sum guaranteed for life related to the person’s needs, normally to cover the care and case management costs.
Legal costs are currently generally recoverable in full from the defendants and at the end of a successful claim, a brain injured person will receive 100% of their compensation.
In the USA, the legal system for a brain injured claimant is different. There are some factors in common, for example, both legal systems in the UK and the US work on a fault based principle. However, the USA has federal laws that operate as well as different laws from state to state.
For those who have suffered a brain injury following a road traffic accident the situation is quite different in the USA as in some states motor insurance is not compulsory and there is no equivalent to the Motor Insurers Bureau meaning access to justice and compensation following acquired brain injury may be more difficult for some claimants.
The level of damages that can be recovered can vary from state to state, and jury awards are made, whereas in the UK a judge determines the level of damages.
Awards can be made as a lump sum or structured settlement in the USA, this is a way of investing the award to produce an annual income (a top down system). This is different to England, where a “bottom up” system is used, by looking at the financial need and providing for annual payments to meet that need.
Legal costs are commonly dealt with under a contingency fee in America meaning there are no initial costs to the injured person and their family but the lawyer can take a percentage of the damages at the conclusion of the case. The percentage is usually agreed at the outset of a case depending upon the risk involved.
Whether you sustain a brain injury in the UK or United States of America it is imperative that you find a lawyer with expertise in dealing with acquired brain injury cases. I would advise that you research your lawyer carefully beforehand and speak to them and arrange a meeting to ask them about previous cases that they have settled, their experience, how they can help you with your rehabilitation and how they can help your family before finalising your decision. You need to be confident that you can work together as a team with your legal representative.
If you are an American injured in the UK or vice versa, it is also vital that your lawyer has expertise to deal with jurisdictional and applicable law rules. You need specialist advice to ascertain if you can bring your claim in the country of your choice and if there is a choice of jurisdiction which is the most appropriate venue for your claim would be. It may be that lawyers from both companies are required to work together to ensure the best outcome for you.
March 28, 2012