Legal Support Service North East, Yorkshire and Humberside Support for life after childhood brain and other serious injuries www.childbraininjurytrust.org.uk
Hello and welcome to the Legal Support Services booklet for the North East, Yorkshire and Humberside You may not know this, but every 30 minutes, a child or young person will acquire a brain injury. It might be the result of an illness or an accident, such as a road traffic collision. If you re reading this booklet, you re doing so because you and your loved ones have been affected by a child or young person s acquired brain injury. The Child Brain Injury Trust supports children and young people who have suffered an acquired brain injury and their families, helping them to understand and cope with what the future holds. The Legal Support Service ensures that all the children, young people and families that we work with get the right legal support as soon as possible. This can cover a wide range of topics, from assisting with pursuing a claim for welfare benefits or compensation to understanding what your employment rights are if you need to take time off work to care for your child. There are many groups who are required by law to keep our children safe from harm. When that protection falls short, the injuries suffered as a consequence can have a dramatic life changing impact not only for the child but also for their family. At Irwin Mitchell we believe that our clients deserve the best possible medical care, rehabilitation and support following an accident. Irwin Mitchell fight fearlessly to give your child the greatest chance of winning their case. We re renowned for our understanding of the issues affecting your child and family, and we know what positive action to take to make a difference. Our lawyers offer the highest level of professionalism and expertise, combined with dedication and sensitivity. If your child has suffered an injury, the priority is to ensure that their treatment and care is focused on optimising recovery so as to enjoy the best possible quality of life. Your legal team will work with you and support you through any difficult decisions. When choices have to be made, we will guide you through the options to ensure that you feel comfortable that you are doing the right thing for your child. The service we provide is about much more than securing compensation. We can help with all manner of health, social and financial issues from arranging and purchasing specialist equipment and accommodation, to education and income provision through to various types of investment. Our reputation for working on children s serious injury cases is second to none. We place maximum emphasis on the best interests and long term security of a child. We look at all the opportunities and possible outcomes and we demonstrate vision which extends far beyond litigation and compensation to provide an integrated service. Where cases require, we can bring together expertise from a wide range of legal disciplines including: personal injury, education law, community care, family law, court of protection, trusts and investment services. This approach enables us to provide highly effective, dedicated and focused services for children whose special legal needs are very different to those of adults. 2 Legal Support Service North East, Yorkshire and Humberside
Irwin Mitchell s services include: Immediate investigations to determine who was at fault Interim payments wherever possible to help fund private healthcare, rehabilitation and financial security for your child Taking into account any worries you may have such as the future financial needs of your child and their state benefits Expert support for you to access rehabilitation and therapy services Regular updates and contact with you to let you know how your child s claim is progressing Meeting you at a place convenient for you i.e. at home or at hospital. Legal Support Service North East, Yorkshire and Humberside 3
Why and when should I talk to a solicitor? When can we make a claim? Unlike adults where there are strict time limits on making a claim, children can proceed to make a claim any time before their 21st birthday. The law states that people under the age of 18 cannot deal with their own compensation claim because they do not have the legal capacity. A litigation friend (usually a parent) needs to be appointed to act on the child s behalf. However, the sooner you contact us the better we are able to prepare your child s claim and we will give you clear advice about how we will progress the claim. A children s accident claim can take years, especially in the case of a serious injury, as it is important to properly assess the long-term impact of the injury. Sometimes the effects of an injury only become more apparent as the child grows up and progresses through school. In general, the more serious the injury and the younger the child when injured, the longer the child accident claim will take. In these cases, we will continue to monitor your child s progress and provide support wherever needed. We can also assist in obtaining interim payments which can be used as the case progresses to fund care, medical treatment and educational support. Through many years of representing children, we understand how important it is to protect their long term financial interests. There are many aspects to consider when safeguarding compensation for your child and it is vital that you take legal and financial advice. Where appropriate, we can set up a private trust, advising you of the benefits, handling all arrangement and even providing a professional trustee service if required. Our court of protection team and sister company IM Asset Management can help you with these matters. 4 Legal Support Service North East, Yorkshire and Humberside
Funding options If you are worried about legal costs, don t be. Contacting us for initial advice on your child s claim will cost you nothing. If we advise you to pursue a claim with us, we will review all the options for funding it. There are a number of ways in which you could fund your child s case. These include: Conditional Fee Agreement, commonly known as a No Win No Fee agreement Legal Expenses Insurance as part of your household or car insurance you may have legal expenses cover to help with any legal costs. If you do not have access to legal expenses insurance, your best option is to consider a No Win No Fee agreement. Even if you do have access to other funding options, a No Win No Fee agreement may still be the best option for your child. When we discuss your claim in more detail we will tell you if the No Win No Fee option is available or if we need to look at the other funding options above. A No Win No Fee agreement, which is also known as a Conditional Fee Agreement (or CFA) gives you security and peace of mind when making a personal injury claim. We will assess the prospects of winning your case, review all the funding options available to you and consider if you are best supported with a No Win No Fee agreement. If we are able to offer you a No Win No Fee agreement for your case and you decide to accept that offer you can be reassured that there is no financial risk to you if you are unsuccessful. This is subject to entering into a No Win No Fee agreement in conjunction with our Allianz Litigate insurance policy and complying with your responsibilities under its terms. If you win your claim, your opponent will pay the majority of your basic legal costs and disbursements (e.g. court fees, medical reports). If you win, any of the legal costs not paid by your opponent will be deducted from any compensation awarded to you so you won t have to pay a penny out of your own pocket until your claim has successfully come to an end. Any disbursements reasonably incurred but not recovered from your opponent will be covered by insurance. Remember, there is absolutely no financial risk to you or your family if you are unsuccessful. These funding arrangements detailed above relate only to personal injury cases and do not refer to any other legal services. The amount of compensation your child receives will depend on many factors, including how seriously your child was injured, how that injury will affect their current and future adult life and the extra support they will need in the future. Legal Support Service North East, Yorkshire and Humberside 5
Irwin Mitchell integrated legal services Irwin Mitchell offers a number of additional services that can support your child, you and your family throughout the claim. Client liaison managers Our client liaison team provide a unique service for children with serious injuries, providing support and information to you and your family whilst working alongside our solicitors to help you deal with all of the non-legal problems you may face. The Client Liaison team is skilled at working with local services, medical and local authority professionals, supporting you to advocate for your child and ensure that the right support is available in hospital, at home and in school. In addition to this, our client liaison managers offer practical support with day to day issues such as budgeting; welfare benefits; rehabilitation; coping strategies (including educating siblings about their injured brother or sister) as well as working closely with you and your family concerning housing adaptations or equipment and liaising with your child s treating team and their school. Public law If your child has health or social care needs which require additional support or services, then your local authority or primary care trust have specific duties to ensure that your child s needs are being met. Our public law team has extensive experience providing advice and assistance in relation to community and healthcare law and are able to assist even if there is no compensation claim. The team regularly fights for clients in a number of community and healthcare areas including: Obtaining assessments of needs and securing care plans Liaising with primary care trusts regarding NHS continuing healthcare funding Obtaining respite care services Challenging social services departments and primary care trusts on provision of care and other services for children with disabilities living in their own homes or in residential placements. Our Public Law team are also experts in education litigation. We can help you legally contest decisions made by your son or daughter s school, nursery or LEA if you feel their right to education has been denied. Examples of this include: Special educational needs are not being met An appeal needs to be made against an exclusion Admission may have been denied to a school or nursery. 6 Legal Support Service North East, Yorkshire and Humberside
IM Asset Management Our sister company IM Asset Management can provide you with specialist financial advice providing support and guidance on how to make the most of an award on behalf of your child and, if appropriate, in conjunction with our court of protection team. As there are different ways in which legal cases can be settled, it is important to ensure you have an initial unbiased meeting with a financial expert. IM Asset Management benefits from unique and unrivalled expertise. Their advice ranges from helping find the best cash accounts, to how to generate the greatest and most effective long term returns. IM Asset Management offer this initial advice at no cost to you. Family law Unfortunately, the pressures of a child suffering a serious injury can have a major impact on the family unit. With expert advice on parenting time arrangements including residence (custody) and contact (access) as well as a whole range of other concerns and issues that might arise, our team of specialist advisors will help you and your family. We also have experience in special guardianship orders, adoption and issues grandparents can face. As well as providing legal advice we will also assist you in accessing emotional support to keep the emotional impact of any difficulties within your family unit to a minimum and assist you through this transition. Our family team are also able to assist even if there is no compensation claim. Medical negligence Fortunately medical treatment in the UK is generally of a high standard and poor decision making and medical accidents are rare. However, there are occasions where children are not provided with medical care of an acceptable standard, either during or after their birth, which can leave children and their families to cope with lifelong disabilities and on-going complex care needs. These disabilities may include Cerebral Palsy, brain injury, facial paralysis or fractured bones. Families naturally want answers and the comfort that lessons have been learnt and mistakes in the future will be avoided for other families. It may be appropriate to bring a formal complaint about the treatment received; this can be done whether treatment was provided by a NHS hospital, a private hospital or by your GP. Alternatively, a claim for compensation may be justified. Compensation is not a windfall but rather a way of providing for your child with financial support in relation to their on-going care needs, specialist aids, equipment, education and rehabilitation. If your child has on-going treatment at the hospital or with the clinicians where the negligence occurred, this should not stop families from investigating a claim as the hospital clinicians continue to have a duty of care to provide the best treatment and care to their child. Irwin Mitchell have years of experience working with families whose children have suffered a brain injury due to negligent medical treatment and are one of the largest, dedicated, national teams specialising in all types of medical negligence. We have a franchise with the Legal Aid Agency for medical negligence which is an indication of our expertise and specialism in this area. Legal Support Service North East, Yorkshire and Humberside 7
Court of protection The court of protection is a division of the high court which can protect people who are incapable of managing their finances and welfare. Our specialist team can guide and support you through the options available for managing the financial affairs for your child, and help you make choices that will be of most benefit to them. Our court of protection team deals with a full range of services including: deputyships; damages management; trusts; lasting powers of attorney; wills and personal injury trusts. Criminal injuries If your child has suffered a brain injury through a criminal injury, for example, shaken baby or abuse, then you can make a claim from the Criminal Injuries Compensation Authority (CICA), a government body created to compensate innocent victims of crime. The CICA will investigate claims thoroughly by gathering witness statements, police reports and any other relevant documents about the alleged injury. Once they have all the information, the CICA will make a decision on whether to award compensation. Sometimes the CICA may decline a claim or make an inadequate offer of compensation. If this happens, we will advise you on the possibilities of seeking a review of the decision. We will advise you at the outset on how the CICA approach the assessment of compensation and how that will apply. As we learn more about the injury and obtain further evidence such as medical reports, we will be able to assess more accurately how much the CICA is likely to award you and your child. 8 Legal Support Service North East, Yorkshire and Humberside
Common myths when children are involved in road collisions Establishing fault when the child is a pedestrian It is often more difficult to establish the facts surrounding collisions involving children. Even if the injured child can remember what has happened to them, they may be considered to be too young to provide a witness statement and give evidence to a Court. If they are with friends who are also children, then their friends accounts of what they saw may equally be considered less reliable than evidence provided by adult witnesses. Collisions between a child pedestrian and a motor vehicle will often result in the driver arguing that the child was at fault by walking or running into the road at the last minute, giving them little or no opportunity to react and to avoid hitting the child. The police will often then be placed in a difficult situation where they are left having to accept the information given by the driver and any adult witnesses, who may say that it all happened too fast and that there was nothing the driver could do. However, there are important and significant differences between what the police look at to try and establish that the driver has committed a criminal offence, and those matters which are relevant to establishing whether a civil claim for compensation can be brought against the driver. It is therefore critical that, when trying to identify whether a civil case for compensation can be successfully brought on the part of a child, that the following matters are considered: The fact that the police may not prosecute a driver does not mean that a civil case cannot be brought in respect of the collision. Different Court systems exist for criminal and civil matters and different thresholds exist for proving a case. The police must satisfy a high burden of proof to establish that a criminal offence has been committed, whereas the threshold for proving liability (fault) in a civil compensation claim is much lower. Never assume that because there are no criminal charges brought against the driver, that there is no claim for compensation. Based on the snap shot recollections of the driver and the accounts of any independent witnesses, it may look as if, at that point in time, that there was nothing that the driver could do to avoid hitting the child. To establish whether this is in fact the case, further investigations will need to be carried out. This will involve a detailed review of the police evidence, carrying out a site visit, taking full witness statements and, in some cases, obtaining an expert report to try and reconstruct the collision. In many of these cases, although the driver might have been able to do little or nothing to avoid hitting the child once they stepped out into the road, it is possible to establish that the driver should have seen the child at an earlier stage, when avoiding action could be taken. The age of the child is relevant to the Court s view of whether or not they are at fault for the collision. Younger children will not be considered to be to blame if they cross a road when it is Legal Support Service North East, Yorkshire and Humberside 9
not safe to do so because the law says they do not know enough about road safety to be held responsible for their own safety. Older children can be held responsible because the law considers they should be old enough to take steps to keep themselves safe. For a civil compensation to succeed it must still be established that the driver is at fault but this is viewed in the context of the age and actions of the child. Establishing fault when the child is a passenger There are two main common myths when a child is involved in a collision when travelling as a passenger in a car. The first is that if the child wasn t wearing a seat belt/using an appropriate child seat they cannot bring a claim. The second is that they cannot pursue a claim if the car was being driven by a family member who was responsible for the crash. Child seat/seat belt issues It is the responsibility of the driver of a car to ensure that children under the age of 14 are being carried safely and that they are wearing a seatbelt or are restrained appropriately in a child seat. If an accident occurs and a child under the age of 14 is not properly restrained, then no blame will attach to the child. At the age of 14, the child passenger becomes responsible for ensuring they are wearing their own seatbelt, and they may therefore be held to be partly to blame for any injuries they suffer if a collision occurs. If a child of 14 or over fails to wear a seatbelt AND it can be proved that as a result of not wearing a seatbelt they are more badly injured than they would have been had they been properly restrained, then their claim for compensation against the driver should still succeed. However, there will be an argument that there should be a percentage reduction in their compensation to reflect their own contribution to their injuries as a result of their failure to wear their seatbelt. This percentage deduction should not be more than 25% and often is significantly less than this. Family members The relationship that a child has with the driver is irrelevant to the issue of fault. The driver who was responsible for the collision and who drove negligently will be responsible for the claim, irrespective of family ties. Whilst it can feel uncomfortable to consider bringing a claim for a child against a family member, the reality is that the driver s insurance company will deal with the claim on their behalf. Other road crash issues Insurance not all drivers on the road are properly insured. Thankfully, there are a number of ways that claims involving an uninsured driver can still be brought and can succeed in fact it will be a rare circumstance indeed where this is not the case. Never be put off seeking legal advice because the motorist who caused the child harm was uninsured. Hit and Run whilst it can be more difficult, the same approach should be taken if a collision involves a driver who fails to stop. Let a specialist solicitor assess what can be done to help the child in the first instance. 10 Legal Support Service North East, Yorkshire and Humberside
Other types of cases involving children Remember that the starting point in any claim for compensation claim is to establish negligence (fault). Accidents do happen, and if an injury is caused by a genuine accident that could not have been foreseen or avoided, then there will be no compensation claim. To succeed in a civil claim, it must be possible to show negligence on someone else s part. This involves establishing that they have either done something wrong or failed to do something that can reasonably be seen to have exposed the child to the risk of injury. Legal Support Service North East, Yorkshire and Humberside 11
It is always important to assess the potential risk attaching to your actions and put in place reasonable steps to avoid those risks. When looking at activities involving children this is even more important, as children will not necessarily appreciate those risks for themselves and keep themselves safe. Often, risk assessing is common sense, for example, you would not leave a toddler in a room with an open fire or sharp razor blades on a surface that was within their reach. In other circumstances, it can involve a more systematic approach, for example, knowing and applying safety precautions with a piece of playground equipment (e.g. maximum numbers of children playing on it at any one time, minimum height restrictions etc.) and making sure that any supervisor is trained and has the necessary skills to keep the children safe. The more involved the activity, the more care and thought is needed when looking at risk. This is particularly important when considering potential claims against organisations such as schools or leisure facilities for example. A school trip involving a coach journey, hill walking and camping will need careful thought and a risk assessment to look at each stage of the activity, to identify the potential risks and to put in place a plan for appropriate actions to solve any difficulties that might arise. Failure to take these steps can amount to negligence. Conclusions There are a lot of complex issues to consider when a child is injured, and things might not be as straightforward as they seem at first blush. The legal process is there to help look after a child, whether they are placed in danger by a lack of life experience and immaturity, by their youthful desire for excitement and fun, or simply because they find themselves in the wrong place at the wrong time. If a child is injured as a result of someone else s negligence then there should be a legal remedy available to them. By seeking early expert and specialist legal advice on the child s behalf, you will be able to identify what can be done to maximise the chances of a positive outcome to any claim for compensation. 12 Legal Support Service North East, Yorkshire and Humberside
Key individuals John Davis John is a Partner in the Newcastle office and has over 25 years experience of acting for children and young people with serious injuries sustained in accidents, in particular brain injuries and other injuries resulting in permanent and life-changing disability. John is committed to innovation, uncompromising standards of quality and using the law to improve the quality of life of injured clients and the legal rights of disabled people. T: 0191 279 0098 / 01642 246915 E: john.davis@irwinmitchell.com Irwin Mitchell Wellbar Central, 36 Gallowgate, Newcastle Upon Tyne NE1 4TD Irwin Mitchell The Gateway, Lower East Street, Middlehaven, Middlesbrough TS2 1SW Carolyn Heaton Carolyn is a partner in the Leeds office and has over 20 years of experience in acting for adults and children who have sustained brain damage. Carolyn frequently acts in difficult, complex and high value cases securing excellent results for clients. Obtaining first class rehabilitation for her clients is key to everything Carolyn tries to achieve so as to maximise her clients and their families quality of life. T: 0113 220 6231 E: carolyn.heaton@irwinmitchell.com Irwin Mitchell 2 Wellington Place, Leeds LS1 4BZ Caroline Mitchell Caroline is a Senior Associate Solicitor in the Serious Injury Team in Sheffield dealing almost exclusively with clients who have suffered brain injury, usually as a result of road traffic collisions. Her particular expertise and area of interest is working with young people, as they progress through adolescence into early adulthood. T: 0758 777 5769 E: caroline.mitchell@irwinmitchell.com Irwin Mitchell Riverside East, 2 Millsands, Sheffield S3 8DT Legal Support Service North East, Yorkshire and Humberside 13
Keith Norman Keith is a registered Occupational Therapist and has worked in various hospital and community roles, supporting patients and families to understand and adjust to the varied consequences of brain injury. As a Client Liaison Manager for Irwin Mitchell in Leeds, Keith uses his knowledge of rehabilitation pathways and providers (NHS/local authorities/schools/charities/private providers) to help ensure the best possible outcomes for clients. T: 0113 394 6857 E: keith.norman@irwinmitchell.com Irwin Mitchell 2 Wellington Place, Leeds. LS1 4BZ 14 Legal Support Service North East, Yorkshire and Humberside
Notes Design: Frisbee Creative Legal Support Service North East, Yorkshire and Humberside 15
www.irwinmitchell.com Unit 1, The Great Barn, Baynards Green Farm Nr. Bicester, Oxfordshire OX27 7SG T: 01869 341075 E: info@cbituk.org www.childbraininjurytrust.org.uk Follow @cbituk facebook.com/childbraininjurytrust Registered Charity No. 1113326 Registered Company No. 5738517 A Charity Registered in Scotland SC 039703 VAT Registered No. 125795196