Compensation claims

A brain injury can change a person’s life, causing many long-term difficulties, sometimes with serious financial consequences. In cases where someone else was responsible for causing the injury, legal action may be necessary. This typically takes the form of claiming compensation.

This page offers information on what compensation is, who can make a claim, common concerns, the process of claiming compensation, and other related issues.

This information applies to compensation claims governed by the laws of England and Wales. If you have been injured in another country, including Scotland or Northern Ireland, you will need to obtain specialist legal advice from a lawyer with experience in successfully handling brain injury compensation claims in the relevant country.

What is compensation?

Compensation is something (usually money) that is given to someone to make up for damage, injury or loss.

Compensation is paid by the person, company, employer, local council or other such party that has caused the damage, injury or loss (known as the defendant). It is paid to the person who has sustained the damage, injury or loss - in the case of this publication, this is the brain injury survivor.

The amount of money that is compensated after brain injury is calculated very carefully. It is based on the impact of the brain injury, and includes things such as:

• financial impact - for example, struggling to return to work after brain injury and therefore losing income;

• practical impact - for example, needing to pay to appoint carers to look after the survivor, or a case manager to coordinate care;

• physical impact - for example, losing the ability to walk or complete self-care activities independently, such as washing or dressing;

• psychological impact - for example, no longer being able to go out to socialise or pursue day-to-day activities, due to anxiety or depression.

Compensation payments can be used to cope with the financial impact of the injury, for example to pay for rehabilitation, employ case managers, buy adaptive equipment, make necessary home adjustments or cope with the loss of regular income.

Eligibility for claiming compensation

Never assume that you will not be entitled to compensation.

You can claim compensation if you can show that another person was at least partly responsible for your injuries. Even if you were partially at fault, you can still make a claim, though the amount of compensation you receive might be reduced proportionally.

Choosing the right solicitor

It is more important to instruct a solicitor with experience than to allow someone who is inexperienced to handle your case purely because he/she has an office close to your home. In seeking expert medical advice you would probably not hesitate to travel some distance to see the right specialist. The same considerations apply to brain injury compensation claims. Choosing the wrong solicitor could result in under-valuation of your claim. It is important that you choose a solicitor specialising in brain injury work.

Brain injuries are complicated and involve different considerations from other forms of injury. It is very important that the solicitor you choose to handle your claim understands the complexities of your injury and how your own injury is likely to affect your life. A specialist solicitor will know the right expert to instruct in your claim which will result in fair and just compensation to you.

The solicitor that you instruct will explain to you how your claim will be conducted. This advice could seem complicated, particularly following a brain injury. You must, therefore, always ensure that you take someone with you who will help you understand the questions and understand the advice and perhaps ask questions that may not occur to you. Never hesitate to take notes. The solicitor you instruct should send you a letter setting out the advice that has been given at your initial meeting. If you do not receive such a letter you must not hesitate to ask for the advice in writing.

It is common for claims for compensation for brain injury to take 3 to 5 years and in some cases longer. The reason for this is that it is important to ensure how your brain injury is going to affect your future and to assess all your future needs. This will enable your solicitor to value your claim properly. You should not, therefore, expect your case to be settled quickly - indeed, it is unlikely that a swift settlement would be in your best interests. Delaying the settlement of your claim should not prevent your solicitor from obtaining an interim payment for you in most cases.

The solicitor that you instruct will find it helpful if you can keep a record of important events in a diary and also keep a list of expenses that you incur.

It is important that your solicitor explains to you the various options for funding your claim, how costs can be recovered and how your position in relation to legal costs can best be protected.

It is hoped that you will find this list helpful to you in selecting a solicitor who is competent to handle your case.

The claim process

There are three main elements of any claim for compensation. You will need to show that another person was at least partly to blame for causing your injuries, and this must be decided at the earliest possible stage. It is also necessary to prove that you (The Claimant) suffered an injury and that another person's (The Defendant's) actions caused your injury.

Whilst the main purpose of pursuing a claim is to receive financial compensation for your losses, it can also provide other positive benefits. For example, the Rehabilitation Code says that support should be provided to you and your family. This will usually be in the form of rehabilitation and treatment but can also include counselling or cognitive behavioural therapy or the appointment of a Case Manager, who can assess what support you need. In some circumstances, third party insurance companies will provide support and rehabilitation even when liability is in dispute.

The Solicitor will arrange for you to undergo medical examinations to determine the prognosis for your injuries. Any treatment needs and care requirements will also be identified during the examination. It will help your recovery if you are able to gain access to the recommended treatment as soon as possible.

In addition to the compensation for the injury itself, you are entitled to claim expenses. These may include loss of earnings, care, medical expenses and equipment. The Solicitor should therefore investigate all potential expenses claims and include a claim for any past expenses as well as a projected future expense claim for all expenses you will have once the claim is settled.

Meeting your solicitor

Before you meet your solicitor it is a good idea to get together any letters, documents or other paperwork which you think the solicitor might need to see. For instance, if you have been involved in a car accident the police may have given you a card or a letter with some details on about the accident e.g. time, place, reference number (if in doubt show the solicitor the document and they will decide if they need the document or not).

It is also advisable to take any insurance policies that you may have to the meeting so that the solicitor can check to see if you have any legal expenses insurance.

At your first meeting there may be more than one solicitor present. This means that, if your solicitor is not available to speak to you at any time during your case, perhaps because they are at a court hearing, you will still have someone you can speak to who is familiar with your case.

The solicitor will ask you to tell them what, if anything, you can remember about the accident. It may be that because of your injuries you cannot remember anything. If that is the case, do not worry. The solicitor will be used to dealing with this situation. If a friend or family member witnessed your accident, your solicitor will be able to speak to them and they can also obtain information from others, e.g. the police or the Health and Safety Executive.

Once the solicitor is aware of the facts of your case they will tell you whether they have enough information to be able to properly advise you. If the solicitor feels that you have a reasonable chance of winning your case (i.e. a greater than 50% chance), then they will tell you what investigations they need to do next. They will also discuss with you how to pay for these investigations.

There are a number of different ways to fund your claim such as Legal Aid in Clinical Negligence cases, legal expenses insurance, after the event insurance, conditional fee agreements ("no win, no fee") and in some cases funding from your trade union or the Legal Services Commission (formerly the Legal Aid Board). The solicitor will advise you which option is best for you.

Investigating the facts

Once you have appointed a solicitor, they will need to start gathering information relevant to your case. This may include signed statements from relevant witnesses, police reports or photographs of the scene where the injury took place.

Photographic evidence is important, so if you have taken photographs of the scene or any equipment involved, give them to your solicitor.

Contacting insurers

The solicitor will submit a letter of claim to the defendant(s) and will then contact their insurers. The insurance company will have to say whether they will accept the claim or not. If they do not, this is called contesting liability.

There will be a set time scale for the insurance company to make a decision about liability and to state whether or not they intend to compensate you.

If the insurers contest liability, your solicitor will then take steps to start Court proceedings on your behalf.

Gathering medical evidence

Your solicitor will instruct medical experts to prepare reports which describe your injuries, the history of your treatment, your present medical condition and how you will be affected in the future. This will not be the same medical expert who was involved in your treatment, as they will need to be independent and will be chosen by the insurance company or your solicitor.

The medical assessment process

You will be required to attend a medical examination. This is an important part of your case and is a chance for the impact of your brain injury to be understood and documented.

It is very important that the medical expert involved in your case should understand the details of your brain injury and the impact of it. It is therefore helpful, or sometimes necessary, to bring a close relative along with you to the medical assessment, so that they can speak on your behalf or give important information about the injury.

You could also consider making a list of your difficulties before the medical assessment and giving this to the medical expert. Take your time with making this list, and consider the day-to-day impacts of the injury.

Remember, whatever your problems are it is important that they are explained in as much detail as possible and that you do not downplay or minimise the consequences of the injury. Consider all types of effects that you are experiencing, not just physical ones.

It is likely that several medical experts will be instructed by your solicitor, in particular:

• A neurosurgeon or neurologist, who can report upon brain scans and advise on the significance of issues such as post-traumatic amnesia. They may also give an opinion about the clinical consequences of the injury and a prognosis for the future.

• A clinical neuropsychologist, who will be able to carry out tests to analyse the ways in which your injury has affected your cognitive functions, particularly memory and concentration, your personality and behaviour, and your ability to cope with the tasks of daily life and work.

• A rehabilitation consultant, who can advise about your needs for rehabilitation, including all forms of therapeutic treatment, and can provide a medical overview in relation to reports from therapists. The consultant will also be able to give an opinion as to your ability to work and to manage at home in the short, medium and long term.

Neuroimaging evidence

Your solicitor may suggest that you undergo brain scans, especially if you did not have them in hospital when you were treated. CT scans, or more detailed MRI scans, can often show the extent of injury to the brain, which may help the neurologist when preparing the medical report. However, it is important to note that scans cannot show damage at a microscopic level, and some injuries can cause severe difficulties without being evident on scans.

Evidence in relation to personal care needs

Many people who have had a brain injury are much more dependent upon members of their family for help and support in many areas of their lives.

Your solicitor will need to obtain witness statements from family members of professional carers/helpers to provide detailed evidence as to what day-to-day problems currently exist, what carers are regularly providing, and what care needs there may be in the future.

Calculating your claim for damages

Your initial financial losses from the injury need to be added up and properly presented in a Schedule of Loss to the defendant’s insurance company, together with all supporting documents. The expenses that you and your family incur after the injury will be included.

When the case reaches an advanced stage and all expert reports are available, an updated and final schedule will be prepared, setting out all of your financial losses, both past and future. The future loss projections will be based upon mathematical models, and it is important that your solicitor has a good understanding of the mathematical principles involved in the calculations.

In cases where the loss of future earnings claim is complicated, or if you were involved in a business, a partnership or a company, your solicitor might need to instruct a specialist accountant experienced in legal cases to prepare a report for the Court.

The schedule of damages prepared by your solicitor will eventually form the agenda for the negotiation and settlement of your claim or for the trial of the case at Court.

Settling your claim

After all of the evidence has been gathered and calculations for your claim have been made, the insurers should make proposals for settlement (the amount of money you will receive for your claim). Your solicitor will suggest whether their offer is reasonable and whether or not you should accept it.

Some of the things that you should consider when deciding whether or not to accept are:

• What would be the total value of your claim if you were to win completely?

• What are the chances of succeeding and the risks of losing?

• Should any reduction be agreed for any fault on your part (called ‘contributory negligence’) and if so, what percentage?

• Should there be any reduction from the scheduled value of your claim due to the medical and other evidence submitted by the insurance company or their solicitors?

• Are any deductions likely to be made from your claim if the case goes to Court and a judge hears the evidence?

Your solicitor may instruct a barrister to offer you advice for this. It is often helpful to have a meeting with both your solicitor and barrister at this stage. However, the final decision is yours, and your solicitor and barrister should not accept anything without your prior approval and consent. If you cannot manage your own affairs, your solicitor must also advise the Court of Protection about any settlement and obtain their approval.

Steps for Court proceedings

Pre-action protocols

These protocols pertain to personal injury claims, and aim to facilitate the early exchange of information and advice. They establish a timeline for the insurance company to determine liability and compensation. The pre-action protocols also ensure that all necessary information to support your claim is fully shared with the insurance company.

How the Court will manage your case

Once the initial documents are complete, the Court will arrange a date for a procedural hearing at which the judge will give instructions for the exchange of evidence for the case to progress.

If liability is disputed by the defendant, the judge will usually order a split trial. A split trial is a preliminary trial of the liability issues only, which means that the Court will be able to hear the evidence relating to liability in isolation.

If liability is agreed before the hearing, or if you win the case in Court, the judge will confirm a timetable for the exchange of expert medical evidence aids in the valuation of your claim.

It is essential that Court timetables are complied with, as the Judge may not allow evidence or documents that are delivered after the deadlines set out in the Court orders. Your legal team will manage this on your behalf.

How the Court costs are managed

The Court should set a budget for the legal costs incurred in a case. Each party will receive their own separate budget. Once ordered, all parties must comply with their set budget and any requests outside the budget must have prior permission from the Court. Effective cost management will protect you and ensure all work conducted in your claim is necessary and proportionate.

Additional costs outside the agreed budget are unlikely to be recovered from your opponent.

Expert Assessments

Your legal team will coordinate with independent medical and non-medical experts to produce reports detailing your injuries, treatments, prognosis, and future recommendations. These experts, who must not be involved in your NHS treatment, will include specialists in fields such as neuroradiology, neurology, neuropsychology, care and physiotherapy.

The insurer will also appoint similar experts to create their own reports. Both sets of reports will be exchanged and reviewed under court instruction to produce a joint statement highlighting agreements and disputes. If your claim goes to trial, these experts may be called to testify.

How witnesses will be managed

Your legal team will serve witness statements from witnesses they wish to call to any trial to give evidence. The Insurer will do the same. In some circumstances, witness statements may be submitted to the Court, without the witness being called to give evidence at a trial. Your legal team will support you fully in coordinating and understanding all witness statements and attendance of any witnesses.

Civil Procedure Rules

The Civil Procedure Rules streamline the legal process and encourage early settlements by promoting cooperation. This efficiency is especially beneficial in complex personal injury cases, aiming to resolve matters swiftly and reduce court burdens. Transparency ensures both parties understand each other’s case strengths and weaknesses, facilitating effective negotiations and potential settlements without lengthy trials. This approach saves time and resources, and reduces stress and uncertainty for all involved.

Joint Settlement Meetings

Joint Settlement Meetings (JSMs) are a key tool in the Civil Procedure Rules for encouraging early resolution of disputes. By bringing both parties and their legal representatives together, often with clients present, these meetings provide a structured environment to negotiate and settle claims before they reach trial. This method has proven to be very effective in resolving many cases, saving time, costs, and removing the emotional toll of a court trial.

Trial

If a settlement is not reached and the case proceeds to a final hearing, your solicitor will guide you through the process of giving evidence. It is important to present your story honestly, supported by any relevant notes or documents.

In cases involving brain injuries, the court often relies on testimony from family members, medical experts, and other professionals rather than the injured person themselves. This approach helps ensure that the court gets a comprehensive understanding of the impact of the injury without putting undue stress on the injured individual.

Rehabilitation – alongside the compensation process

Many people with brain injury need some level of rehabilitation after being treated in hospital to maximise their potential for independence.

As your claim for compensation progresses, it is important to ensure that your personal rehabilitation needs are met. These might include therapy, re-education, re-training, housing, transport, disability aids/equipment, care support and enabling help.

Your solicitor should take an active role in working with your rehabilitation team and should provide clear information about the possible extra resources that can be made available through the compensation process. Your solicitor should work with the rehabilitation experts within the NHS to ensure continuity of care as far as possible.

How the Rehabilitation Code can help

The Rehabilitation Code is a vital framework designed to ensure personal injury claimants receive support and intervention as early as possible. Here are some key aspects.

1. Proactive role of solicitors. Solicitors for both claimants and defendants, as well as insurers, have a duty to consider the potential benefits of medical help, rehabilitation, or early intervention for the claimant. This proactive approach is crucial for facilitating a fulfilling and independent life for the injured party.
   

2. Independent Assessment. If the necessary support has not been provided by treating professionals or medical experts, the Code mandates an independent assessment. This assessment, conducted outside the litigation process, identifies the claimant’s needs and the associated costs.
   

3. Funding by insurers. Insurers are required to consider providing interim payments to cover the costs of medical treatment or rehabilitation identified in the independent assessment. This ensures that claimants can access the necessary services without delay.
   
   By adhering to these guidelines, the Rehabilitation Code aims to enhance the recovery process and improve the quality of life for those affected by injuries.

Quantum – how much compensation

1. General damages. These cover pain, suffering, and loss of amenity. This compensation addresses the physical and emotional impact of your injury.
   

2. Special damages. These cover financial losses incurred up to the date of the settlement. This includes medical expenses, lost earnings and other out-of-pocket costs directly related to your injury.
   

3. Future losses and expenses. This category covers anticipated future financial losses and expenses. It includes ongoing medical treatment, future loss of earnings, and costs for long-term care or rehabilitation.

Each case is unique, and the exact amount of compensation will depend on the specifics of your situation.

Categories considered for compensation awards

1.  General damages

• Pain and suffering (the physical and emotional impact of your injuries);

• Loss of amenity (how your injuries affect your daily life, family interactions and recreational activities)

2.  Special damages

These cover financial losses up to the settlement date, including:

• Loss of earnings

• Medical expenses

• Support costs (value of help from family or friends, including their lost earnings)

• Professional care costs

• Costs for any aids and equipment, including maintenance and replacement

• Expenses for home adaptations

• Costs incurred by you and your family for travel

• Value of items damaged in the incident.
  
  

3. Damages for future losses and expenses

• Future loss of earnings, including lost promotion prospects

• Loss of pension rights, if your ability to work is affected

• Personal care and support, including future costs of care, both professional and voluntary

• Case management, if a case manager is needed

• Costs for any required special housing

• Domestic expenses (increased costs like heating)

• Ongoing therapy costs

• Transport costs, especially for specially adapted vehicles

• Costs for professional management of your finances

Keeping detailed records and receipts is crucial for providing these expenses.

Mental capacity

A brain injury can affect the ability to process, retain and weigh up information to make decisions in one’s own best interests. This is known as lacking mental capacity. Losing this ability can cause some people to be at risk of harm, and in these cases, it becomes necessary for someone else to make decisions on their behalf under legal frameworks.

In cases where a brain injury survivor lacks capacity to manage their own finances, it might be necessary for someone to be appointed to manage this, including any compensation claim payments.

The original version of this publication was written by Grahame Codd and Neil Whiteley, specialist personal injury solicitors in national law firm Irwin Mitchell LLP. This 2025 edition has been revised with kind support from Sarah Griggs, Partner at Irwin Mitchell LLP, Tracey Storey, Managing Partner for Personal Injury and National Team Leader, Serious Injury at Irwin Mitchell LLP, and Tracey Lyth, Client Journey Manager at Irwin Mitchell LLP.

This information was last reviewed in 2025.