Karen Ledger (KL): When brain injury occurs, it’s like a bomb going off in the family. Life will never be the same again for any of the members of that family.
People will be shocked, bewildered and overwhelmed, and they then have to go through a complicated process of adjustment, and people reach that adjustment at different stages.
The person with the brain injury will generally have a neuropsychologist assigned to support them. Most will pay attention to people’s feelings and emotions, but the rest of the family may not have any psychological support.
This situation doesn’t get better of itself without professional input, it can get worse and people’s mental health can and often does spiral down.
Louise Jenkins (LJ): It’s a particular challenge if you’ve got someone with little or no insight. They often won’t recognise the need for or be willing to engage with neuropsychological treatment until much further down the line, by which stage, the family may have entered a more advanced stage of crisis and their whole family unit may be at risk of breakdown. There are complex emotions involved in the adjustment process following trauma which include shock, guilt and loss.
KL: That’s a scenario we see a lot. The client’s relationships may get to an advanced stage of deterioration and as Louise says, crisis, before they’re able to accept help. This is often because there is an immense amount to absorb from their new world of injury, rehabilitation and the medico-legal process and clients do not have the psychological space to consider how they are, never mind undertake the rehabilitation.
LJ: That’s where some of the challenges come in from the legal perspective. The compensation claim process is quite rigid in that generally speaking, only the injured person can claim for financial losses and for professional support, but we maintain that as the underpinning principle for compensation claims is to restore someone to their former lifestyle, you have to consider them both as an individual and as part of the family unit. We try to build into the claim some therapy sessions not only for the injured person but also for their spouse and their children.
Some defendants (compensators) say they’re happy to support that because, if the family unit breaks down and the uninjured spouse has been providing a lot of the day-to-day support, prompting and encouragement that the injured person needs, the cost of commercial care to replace that support is significantly more expensive than the amounts you can recover in a claim for support provided by a family member. It is also about embracing the spirit of the Rehabilitation Code and Serious Injury Guide in looking at the wider family need.
KL: Often, people can’t work anymore; they feel their work is taken away from them. People get their sense of identity out of work, as well as from being a spouse or a partner, a father or a mother. And if they lose their ability to earn and their relationships start to deteriorate these are often perceived as more failure and thereby serve to reduce a client’s confidence and self-worth.
LJ: It is akin to a bereavement process for the uninjured partner, yet the person is still there with you.
KL: People don’t have to have a death to experience loss, and loss can activate a bereavement process. So they’re grieving for the person they once knew, and now they’ve got this new person which makes adjustment to the injury complicated. And the thing about brain injuries is they’re hidden. The person looks the same but behaves differently to how they did before. It understandably takes a long time for clients and family members to really grasp the effects of brain injury, because they’re often traumatised, angry, discombobulated and distressed.
The family that includes somebody with a brain injury goes through a process of understanding, just as the client hopefully does. It’s a complex situation trying to comprehend what a brain injury means whilst feeling bereaved.
Family and children’s therapy is relevant too. Children often get missed because they deal with loss and trauma in different ways to adults. Children tend to get on with their lives, as if it’s not happening, so they need particular attention. They won’t be talking about it so much, but they’ll be experiencing it. The sooner that’s managed by specialists, the better it will be for children in the longer term, giving children the best chance of allowing normal development to take place.
LJ: It’s difficult because there’s a significant investment of time and energy put into implementing a rehabilitation programme and support around the injured person. This is integral to the claims process. The spouse can feel as if all the focus is on the injured person and they’ve been left out.
From a legal perspective, we try to involve the uninjured spouse as much as possible in discussing what we’re doing and why we’re doing it. We try to weave in that therapy support for the uninjured spouse so they come along the journey with us rather than becoming a disrupter to the rehabilitation programme because they feel excluded and unsupported. If securing interim payments through the claim to fund support is challenging at an early stage, our in-house team of client liaison managers, all of whom have a healthcare background, can provide time and input in discussing the challenges and in signposting for support both for the uninjured spouse and children as well as for the injured client. There are some really valuable resources for children, for example, which explain some of the problems that can arise in a parent who has sustained a brain injury to help them to understand and come to terms with changes in the family dynamics.
KL: People affected by brain injury can feel deserted by their partner and like a single parent. This is because they’ve lost their partner’s contribution to childcare and work in the home. The complexity and challenges of living in these circumstances should never be underestimated.
LJ: At the point of injury, they are in shock and just want to be there for the person who’s injured. I’ve worked with a number of people where the grief and adjustment process is very substantially delayed. These delays extend to weeks, months or even years.
They’re in a fight/flight/freeze situation. They’re managing a situation that’s about life and death initially in the most serious cases. When the acute stage is over and they have some space to start thinking about themselves, rather than the person who’s injured, they can start reflecting. It’s an emerging awareness that it’s never going to be the same again, that some degree of permanence will remain with the injuries, that this is how it will be in the longer term and a realisation that you need support to adjust to the new normal.
KL: It takes a while for that realisation to come in. I am often working with partners who are in that process of adjustment and what initially attracted them to the person pre-injury has been lost post injury, for example agile thinking and intelligence. Moreover they now find themselves in a caring role and one where many strangers are entering their home and talking to them in alien language! It’s not surprising that for many people this is often too challenging for them to manage and why therapy is needed as soon as possible for clients to regain their own personal power as soon as possible. They will have a private listening, respectful and tender place for them when the rest of their lives are so exposed.
LJ: They don’t know where that injured person is going to land with their recovery in the longer term. There’s a natural recovery process of a minimum of two years following brain injury, often longer, and they don’t know how much recovery the person’s going to make. They’re living with that uncertainty for a long time before being able to understand and adjust to what the long term will look like, often with significant physical, cognitive and behavioural changes which place great strain on sustaining relationships. Independent family law and financial advice is often essential to protect both parties in the event that the relationship does break down.
KL: I believe that acquired head injury is usually devastating to the person and those around them. However, in my experience, people are often amazing in how they find the strength to establish new ways of being and making their life work for them. Therapy can often speed up that process because clients feel heard, respected and understood, a powerful combination for a restorative process particularly when they are so often feeling powerless. This process can help families stay together or decide to go their separate ways and with support they are more likely to do this without acrimony and additional trauma. Observing and supporting clients and their loved ones to dig deep to find the strength and commitment to establish a new life is such an amazing privilege and honour for me.
LJ : When the claims process is managed by expert serious injury lawyers, early access to specialist rehabilitation and support will enable an injured claimant to restore their life to the best possible position and allow them to maximise their potential for the long term, restoring a sense of control and positivity for the future. Working together with therapists like Karen is essential to ensure that a multi-disciplinary network of support can be put in place in order to support an injured person to achieve their goals and rebuild their life as an individual and as part of a family unit after a life changing injury.
Louise Jenkins is a partner at Irwin Mitchell and leads the serious injury team at the firm’s Sheffield office. Karen Ledger is managing director of KSL Consulting and a therapist, counsellor and supervisor with over 30 years of experience.
Proposed changes to our armed forces’ ability to secure justice
In personal injury claims, there is a three year time limit (in the vast majority, but not all, cases) to start a claim, writes Irwin Mitchell’s David Withers.
If an injured person fails to start Court Proceedings within the three year period and there are no exceptions that apply, they run the risk of the Court finding that their claim has become “statute barred”.
In other words, the Defendant would have a complete defence, even if the breach of duty (fault) had been obvious.
Under the Limitation Act 1980, the Courts have the discretion to allow cases to proceed even if they are brought out of time.
This discretion is often used when injured people have not been able to issue Court Proceedings for a number of very valid reasons.
So, cases can proceed, even if they have been brought out of time, the Government is intending to change the law for our armed forces.
The Overseas Operations (Service Personnel and Veterans) Bill would apply a finite deadline of six years for claims for death or injury of a member of the armed forces.
There would be no ability to extend this arbitrary period of time, regardless of how exceptional the circumstances were.
This would place the Ministry of Defence in a much more advantageous position than any other Defendant in the country.
Part 1 of Schedule 2 states:“The court shall not under this section dis-apply any provision of section 11 in its application to an overseas armed forces action if the action was brought after the expiration of the period of six years from the section 11 relevant date”.
There are a plethora of examples when the Ministry of Defence’s negligence may result in significant psychiatric injury to armed forces personnel meaning that there may be an understandable delay in individual exercising their civil rights.
The Government has indicated that the Overseas Operations (Service Personnel and Veterans) Bill will be “providing greater legal protections to armed forces personnel and veterans serving on military operations overseas”; it is difficult to see how this is true.
As the proposed law stands to be, members of the Armed Forces and the Security Services, on the same operation, would have two different outcomes having been victims of the same negligent conduct.
David Withers is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma.
Bereavement damages – an overview
The thorny issue of bereavement damages in fatal accident cases has recently raised its head again on one of my cases, writes associate solicitor Lauren Haas. Since so few of the families I encounter are aware of bereavement damages it may be useful to summarise the current law in this area and set out what the potential issues are.
What are bereavement damages?
Bereavement damages are a fixed sum of money which can be claimed on the unlawful death of a loved one.
They are separate from any financial dependency claim, which can of course also be brought.
Unlike a lot of other jurisdictions in Europe and the world, within the English jurisdiction we are very restrictive in our approach to bereavement damages.
Who can claim?
The current legal position allows you to claim the bereavement award if you are:
- The spouse or civil partner of the deceased; or if no such eligible claimants exist, then
- In cases involving the death of a child under 18, the parents if the child was “legitimate”, or the mother if the child was “illegitimate” ie mother and father were not married.
The question of who can actually claim this award has caused some controversy and outrage in recent years.
In 2017, a case in the Court of Appeal (Smith v Lancashire Teaching Hospitals NHS Foundation Trust) resulted in the Court of Appeal dragging the rather outmoded position on eligible claimants into a 21st century setting by ruling that cohabitants who have lived together for two years or more (for at least two years immediately prior to death) can claim for bereavement damages.
However – beware! As is the case for parents, where both an eligible cohabitant and spouse are eligible to claim bereavement damages then the award is divided equally between them.
Who cannot claim for bereavement damages?
Despite the fact that some cohabitants are now entitled to bereavement damages, the list of people entitled to a bereavement award remains very restricted.
The following individuals are not entitled to a bereavement award:
- Cohabitants of less than 2 years
- Parents of an adult child who is over the age of 18
- The unmarried father of a child under the age of 18
- Children who have lost a parent (regardless of the child’s age)
How much can be claimed for bereavement damages?
Following a consultation by the Government in reaction to the Smith v Lancashire case mentioned above, the award for bereavement in fatal accident claims was increased from £12,980 to £15,120 in March 2020 (after seven years of no increase at all).
The new award level applies to deaths on or after 1 May 2020.
However, the Ministry of Justice’s reiterated view is that bereavement damages are token in nature and have intentionally been limited in scope to a very restricted pool of individuals.
“What price is a loved one’s life?” is probably one of the most emotive issues lawyers deal with in fatal accident cases.
The answer is of course that no money can ever compensate for the death of a beloved family member, but it adds to the hurt of families already dealing with a loved one’s death to find out what level of bereavement damages are actually set at and how restrictive in scope they are.
As a serious injury lawyer, it has been my experience that this restrictive approach can cause real heartache and anger at a time when families are in an exceptionally emotive state of mind anyway.
Careful and early management of the expectations of the families involved in fatal accident cases in respect of bereavement damages is therefore key.
A multitude of legal commentators have sought to emphasise the inequality and unfairness of the current legal position.
The Association of Personal Injury Lawyers (APIL) carried out consumer research in 2013, in which more than half of the 2,000 people surveyed thought bereavement damages should be more than £100,000, while three-quarters of people wanted the levels set on a case-by-case basis.
In addition, the current legal position does not reflect modern society’s view of and the proliferation of so-called “illegitimate” children ie children not born to a married couple.
It is a fact of life that (depending on the studies one consults) around 30-50% of babies are born out of wedlock.
That means a lot of fathers will fall outside of the scope of bereavement damage.
Children are prevented from claiming bereavement damages for parents in any case, which has caused many an expression of outrage when explaining the law to families.
As a comparison, in Spain or Greece you would likely be able to claim damages of around €80,000-100,000 for a bereavement which is caused by an unlawful act.
In Scotland, every case is looked at on its own merits and this has resulted in awards solely for bereavement damages reaching up to £140,000.
Unfortunately, a policy change by the Government is highly unlikely at the present time.
Lauren Haas is an associate solicitor specialising in serious injury and fatality cases at Irwin Mitchell.
Driverless vehicles and injury
The Government has recently indicated that they are intending to consult on changing the law in the near future so as to allow level three automated vehicles on the road, writes David Withers of Irwin Mitchell.
There are six levels of automation:
Level 0: The driver performs all of the tasks associated with driving the vehicle;
Level 1: Some driving features are included but the driver controls the vehicle;
Level 2: The vehicle has automated functions but the driver must monitor the environment and be ready to take control at all times;
Level 3: The driver is a necessity but does not need to monitor the environment at all times;
Level 4: The vehicle can perform all driving functions under certain conditions;
Level 5: The vehicle can perform all driving functions under all conditions.
The proposed consultation is likely to see level 3 vehicles being allowed on the UK roads, in addition to levels 0, 1 and 2 vehicles.
The call for evidence will look at the Automated Lane Keeping System (“ALKS”) – an automated system that can take over control of the vehicle at low speeds, keeping it in lane on motorways.
Drivers may be able to “delegate” the task of driving the vehicle. ALKS can keep a vehicle within its lane and control its movement for extended periods of time.
However, at all times, the driver must be able and ready to resume control when promoted by the vehicle or in an emergency situation.
Transport Minister Rachel Maclean said: “Automated technology could make driving safer, smoother and easier for motorists and the UK should be the first country to see these benefits, attracting manufacturers to develop and test new technologies.
“The UK’s work in this area is world leading and the results from this call for evidence could be a significant step forward for this exciting technology. Following the approval of ALKS Regulation in June 2020 by the United Nations Economic Commission for Europe (UNECE) – of which the UK is a member – the technology is likely to be available in cars entering the UK market from Spring 2021.
“The government is acting now to ensure that regulation is ready where necessary for its introduction”.
The Government’s call for evidence will ask whether vehicles using this technology should be legally defined as an automated vehicle, which would mean the technology provider would be responsible for the safety of the vehicle when the system is engaged, rather than the driver.
Under the Consumer Protection Act 1987, a manufacturer is strictly liable for any damage caused “wholly or partly” by a defect in a product.
In addition, the manufacturer may be liable for a breach of contract and / or negligence, albeit the breach would have to be proven, as a breach of contract and negligence do not (in usual circumstances) attract strict liability.
Under the Automated and Electric Vehicles Act 2018, if damage is caused by an automated vehicle when driving itself, the insurer would be liable for the damage.
There is currently uncertainty due to a gap in the legislation whether an insurer or a manufacturer would be liable in circumstances when damage is caused partially by an automated system and partially due to driver error.
It may be the case that both the manufacturer and the driver could be held liable.
Personally, I think it is fantastic that the UK is keen to lead the way with automated vehicles. However, any further automation of vehicles must be carefully considered.
Automation can lead to complacency amongst drivers. If Level 3 automated vehicles are allowed on the roads, the driver does not need to monitor the environment at all times. The Government has suggested that level 3 vehicles may be allowed on motorways and other roads subjected to a 70 miles per hour speed limit.
Although there will of course be extensive testing, we know that products including those designed to automate the driving experience can and do fail.
I would urge the Government to ensure that we adopt an incremental approach to any automation of driving vehicles so as to discourage complacency and increase the risks that we face when driving on the roads.
In addition, I think provision should be made to ensure that the legal framework insofar as insurance and responsibility is clear.
David is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma.
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