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Sunday, December 18, 2011

Guest Blog Entry: A Comparison Of The US And UK Head And Brain Injury Compensation Law

The following provides an overview of the US and UK legal systems regarding head and brain injuries compensation, when said injuries are sustained through road traffic accidents. The aim is to provide an interesting comparison, as well as an insight into what you can expect to encounter when seeking compensation.

Both legal systems work on a fault based principle. In the US there are federal laws to abide by, and state laws, which differ from state to state. This is where cases can become more complicated, as motor insurance is not compulsory in all states. For this reason some claimants will have a harder time acquiring justice and compensation. Also dependent on state laws, is the recovery of level of damages. Awards, which are compensation for pain, suffering and loss of amenity, are determined by a jury, in contrast to the UK, where awards are made by a judge. In the US awards are distributed using a top down system. They can be distributed as a lump sum or structured settlement, thereby creating an annual income. In the UK a bottom up system is in place, meaning the annual income is established by determining the claimants financial need based on injuries, past and present medical costs, and rehabilitation costs, and then meeting this need. 

The countries’ systems also vary when handling legal costs. In America, the legal costs are commonly dealt with under a contingency fee. There are no initial costs for the claimant and their family, as the attorney can take a percentage of the compensation, once the case is concluded. This percentage is agreed upon by attorney and claimant at the beginning of the case, and is dependent on the risk involved in said case. 

In comparison the general idea behind the UK’s compensation system of all personal injuries, including head injury, and following traumatic brain injury, is to provide the claimant with enough compensation so that they are in the same position they were prior to the road traffic accident. To note, when referring to the UK law in this article, what is meant is the law in England and Wales, since Scotland and Northern Ireland have different compensation laws. The process works as follows: Expert evidence is acquired from experts within medical and non- medical fields. The award is again based on pain, suffering and loss of amenity, by assessed through referencing guidelines, previous, similar cases, which are concluded, and the personal circumstances of the claimant. When discussing financial losses, these are defined as past and future loss of earnings, medical expenses, treatment, equipment need, and accommodation. For a brain injured claimant, the largest section of an award is the cost of their future care, be it at home or in a different setting, i.e. a rehabilitation unit. Rehabilitation has a strong focus within the UK’s compensation process, and is based on encouraging both claimant and defendant to work together and asses the injured individual’s rehabilitation needs. 

Another difference to some states of US, are laws on motor insurance. In the UK motor insurance is compulsory, and there is also the Motor Insurers Bureau, which compensates victims of uninsured or untraced drivers. 

As in the US awards are given as sums of money, or periodical payments providing guaranteed for life annual payments based on the individual’s needs and covering both care and case management costs. In general, legal costs are fully recoverable from the defendant, and a brain injured individual will receive 100% of their compensation, if their claim is successful. 

Neither of the presented legal systems are perfect, and neither are wrong. We can learn from each other’s laws. It is also good to be aware of different countries’ laws, in case of sustaining head and brain injuries through a road traffic accident, when abroad. Here, it is equally vital to find an attorney with knowhow of jurisdictional and applicable law rules. You will require 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. It may be that attorneys from both companies are required to work together to ensure the best outcome for you.

When seeking compensation for head and brain injury in either country, it is important to find an attorney with experience and expertise within head and brain injury cases. It’s best to research attorneys and to meet the one you are considering, to be sure you both get on with each other and can imagine working together as a team.   

Today's guest blog entry was written by Pannone.

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