Acting for clients who have suffered a traumatic brain injury
31st Oct 2019
Over the past 30 years or so I have obtained compensation for many road accident victims who have suffered head injuries resulting in traumatic brain injury.
This blog will hopefully assist lawyers acting for clients with brain damage to understand the terrible consequences of brain injury, whether the brain injury is mild or severe, and to recover the compensation to which such clients are entitled.
Acting for brain injured people can be very difficult and often exhausting. They are often difficult to handle, especially if the damage has been inflicted on their frontal lobes which control impulse and personality.
But it’s not their fault that they can be impulsive, aggressive, disinhibited, inappropriate, unreliable and often uncooperative.
And it certainly doesn't help that many brain injured victims have little insight into their own problems and deficits.
Lawyers acting for brain damaged clients must not dismiss their untoward behaviour as being annoying. Rather, they must be patient, listen and be able to recognise the symptoms of a traumatic brain injury and know what has to be done to prove it.
Proof can be challenging as, regrettably, traumatic brain injuries can often be overlooked by treating doctors, who concentrate more on obvious injuries, such as fractures. It is not unusual for there to be no mention of a brain injury in ambulance or hospital records or in the records of the treating specialists. Many accident victims are discharged from hospital without even knowing that they have suffered a brain injury.
Early identification of brain injury is important. The sooner rehabilitation is provided, the greater the chance of recovery.
If a traumatic brain injury remains unidentified and untreated, the lives of the accident victims can easily spiral out of control, as their cognitive deficits and/or their impulsive behaviour cause them to disconnect from their family and friends, to lose their jobs, to be depressed and anxious, to become ‘unlovable’, to suffer financial hardship and to be shunned by society. It can be a dreadful downward spiral.
Cases involving mild brain injury can be particularly difficult, because the brain injury can be difficult to prove without abnormal post-traumatic amnesia readings, an abnormal Glasgow Coma Score or abnormalities revealed in MRI scans of the brain.
It is important therefore to obtain ‘before and after’ statements from family members, friends and work colleagues, to obtain a reliable comparison between the accident victim’s pre- and post-accident intellectual functioning, personality and behaviour.
Cases involving severe brain injury are much easier to handle because the effects of the injuries are so obvious and are supported by the abnormal post-traumatic amnesia assessments, abnormal Glasgow Coma Scores and positive radiological imagery.
In such cases, however, lawyers must be able to ascertain whether their client has the mental capacity to give instructions and to administer the verdict or settlement monies.
If expert opinion dictates that the client does not have ‘legal capacity’, it is critical that the lawyer arranges for the appointment of a tutor to provide instructions and, in due course, to obtain court approval of any proposed settlement.
It is also incumbent on lawyers to advise the tutor as to the choice of funds management, the cost thereof and, if instructed, to make an application to the Equity Division of the Supreme Court for the appointment of a funds manager other than the NSW Trustee and Guardian.
Tom Goudkamp OAM is the Managing Director of Stacks Goudkamp. He has vast experience in compensation law, specialising in major claims arising from motor vehicle accidents. A NSW Law Society Accredited Specialist in Personal Injury, he is the Chairperson of the NSW Law Society’s Personal Injury Advisory Committee, an assessor for CARS (Claims Assessment Resolution Service), and was a member of the NSW Law Society’s Specialist Accreditation Board for 14 years. Tom was the President of the Australian Lawyers Alliance in 2004/2005 and is a current member. He has memberships of the American Trial Lawyers Association (ATLA) and the Motor Accident Authority’s panel of legal practitioners. He is also co-author of the highly regarded Goudkamp/Morrison Personal Injury Law Manual NSW. Tom is an experienced and compassionate solicitor who is dedicated to ensuring that his clients receive a just result.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).