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Title: How does someone with a brain injury claim?

Date: 29 March 2016

Question

My daughter had an accident a year ago. She hit her head very hard – her skull was fractured and she had a bleed on the brain. Thankfully her helmet saved her life. She is out of the neuro-trauma unit of the hospital but she can’t fully look after herself, so my wife and I spend a lot of time looking after her at her house. It was the police officer’s belief that the car driver involved was to blame for the accident but so far we have been more concerned about helping our daughter recover, rather than making a claim for compensation. Her doctors say the next year will be very important in discovering the extent of her recovery.

We do now need to think of her financial position as she certainly can’t work at the moment and we would like some guidance on claiming for her as she won’t be able to fully comprehend the system at the moment.

Jeff, Bucks

It sounds like your daughter is (at least for the time being) what we call a “protected person”. This is a person who lacks the mental capacity to make certain decisions for themselves in this case, as a result of brain injury.

Doctors say that the first 2 years after brain injury determine the likely extent of recovery so the more neuro-rehabilitation you can put in place now, the better her prognosis would be but obviously be guided by her treating medical experts.

Being a protected person does not prevent her from pursuing a claim but she will need a “litigation friend” to make legal decisions on her behalf. This should be someone that can be trusted and relied upon such as you or her mother. The first port of call is to instruct a solicitor to obtain the police documentation. This will give her solicitor an excellent idea of the prospects of a successful claim.

In cases of mental incapacity the usual 3 year time limit for bringing the claim does not apply. Time only starts to run when capacity is regained.

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