Child brain injuries - part 1

In Part 1 of this two-episode series, Emma Eccles of Weightmans is joined by barrister Mike O’Neill to discuss the key legal and practical issues arising in child brain injury claims. The conversation explores the impact of limitation periods, the challenges of predicting outcomes while a child’s brain is still developing, the critical role of early and collaborative rehabilitation, and the importance of instructing appropriately experienced paediatric experts. Designed for insurers and legal professionals, the episode provides practical insights and strategic guidance for managing complex, long-term cases with sensitivity and effectiveness.

Commentary, opinions, and views contained within this podcast are not those of Weightmans LLP or any of its members or staff and are not intended to amount to advice on which reliance should be placed. Weightmans LLP does not accept and disclaims any liability resulting from any reliance placed on such content by any recipient of the same, whether received directly or otherwise.

Transcript

Emma: Hello and welcome to this Weightmans podcast focusing on child brain injuries brought to you by the Weightmans Brain Injury Technical Unit. My name is Emma Eccles and I'm a partner in the Weightmans large loss team based in Manchester.
 
I handle all large loss injuries but specialise in particular in child and adult brain injuries. I'm delighted to be joined today by barrister and friend Mike O'Neill from Nine Chambers.
 
Mike exclusively handles large loss personal injury cases for claimants and defendants and deals with cases of utmost severity. So including our topic today, that's child brain injuries, also adult brain injuries, spinal injuries, amputations, pain disorders and multiple orthopaedic injuries.
 
Mike, firstly thank you very much for joining me today. We are going to be focusing on the key challenges for our insurer and insured clients in defending these child brain injury cases.
 
Firstly, I think it's important to acknowledge of course the devastating effects of child brain injury, not only on the child but on their family and in particular of course the parents.
 
In serious cases it is a lifelong commitment of care at the cost of almost all aspects of those parents' lives, And it is very important, of course, that the claimant receives fair compensation and a collaborative approach where possible is always desirable.
 
This is part one of a two part podcast. Today we will be looking at implications of limitation, brain development, rehabilitation and experts.
 
In the second podcast we will be looking at discrete areas including life expectancy, capacity, how we approach future loss of earnings, and what we do tactically in cases where the claimant sadly is so severely brain injured that they're unlikely to make any meaningful recovery.
 
Mike, thanks again for joining me. I'd like to start by asking you about limitation in child brain injury cases, and why this causes issues for insurers. Is there anything as defendants we can do to force cases to court where there's no limitation date or a long limitation date?
 
Mike: Well, the starting point is to note that the usual three year limitation period in personal injury claims doesn't start to run until the child reaches majority, age eighteen.
 
In cases where capacity is an issue effectively, there is no limitation period.
 
And that creates various challenges for insurers faced with defending these cases. They can obviously have a very long lifespan and they can be very expensive to defend.
 
They can also be quite difficult to control.
 
And that is particularly troublesome where liability remains in dispute. It may be several years before we can see a judicial determination of liability at trial. And as we all know, the memories of witnesses fade with time.
 
But even where liability is not an issue, it can be difficult to get a proper handle on quantum.
 
It can be a very slow process getting information from the claimant solicitors and getting your own experts to instruct.
 
There are some levers that the insurer can pull.
 
They can seek an early judicial determination of liability. And of course they can look to obtain information from the claimants legal team by collaboration.
 
But if those requests for a joint approach fail and break down, there's not a great deal left that insurers can do. They can make an application for a declaration on liability, but there are many cases where we actually may not wish to do that, where it may be advantageous to keep liability in play and to look instead to compromise the case on a global basis.
 
The other difficulty that we face with this is that it can be very difficult for insurers to know where to pitch an offer, which would be the usual route of trying to exit a case at an early stage.
 
The claimant's lawyers will, and in many cases reasonably, argue that it's simply too early to assess the value of a particular offer. And they will argue based on case law that the usual cost consequences should not apply.
 
There is of course the option for the insurer where liability is ain issue to withhold interim payments, but that's not a particularly attractive approach to follow. It can be counterproductive. It can impede rehabilitation.
 
So what we're looking to do first and foremost in cases of this nature is to try and collaborate where possible.
 
Emma: Thanks Mike. I couldn't agree more with your comments on collaboration.
 
In terms of my top tips, I always like a way forward meeting at the start of a case where I'm dealing with a child with a severe brain injury, And that's with the claimants legal team, sometimes we also invite the claimants family to that meeting, sometimes we ask that the claimants barrister attends the meeting, and we can agree a timetable in terms of next steps. We can often agree when it might be appropriate to introduce expert evidence in the litigation. We can also discuss things like whether it's suitable to explore local authority funding, the identity of the case manager, and to just agree a way in which both parties can work together in the best interest of the claimant.
 
So Mike, could I just move on now to asking you about child brain development? So I think it's safe to say that save for in the most severe brain injury cases, claimant and defendant medical experts in the litigation will be reluctant to give prognosis until that claimant has gone through puberty. Could you explain for our listeners today why this is the case and the challenges that this poses for insurers?
 
Mike: Many experts are reluctant to provide a prognosis because the brain is developing through adolescence and into adulthood. And that therefore means that the landscape of these claims, save of course in those most serious of cases, often changes over time as the child matures.
 
Of course, one hopes that you have a recovery period initially from the acute trauma where you see improvements in all aspects of function. But you have great uncertainty because for example, the frontal lobe is very slow to mature. It is the home to areas that manage many aspects of human function, including thinking, emotions, judgement, self control, muscle control and memory storage.
 
And the prefrontal cortex, a smaller specialised region within the frontal lobe is the last part of a child's brain to develop. And that controls decision making, planning, impulse control and personality.
 
And this often doesn't mature until well into adulthood.
 
And the consequences of that are many for an insurer. It's really simply not possible other again than in the most serious of cases where no improvement is expected to know what the long term position will be.
 
And experts will often say, well, here's my take on the injuries at this point in time, but I want to reassess at this date in the future.
 
And that can leave the insurer in the short term with a real difficulty of unpicking between in terms of the claimant's presentation, what is a legacy of the brain injury and what is simply a part of normal adolescence and from which the individual will ultimately mature. From an insurer's perspective, we may need our experts to simply provide the best guess they can as to what the future picture will likely look like, so that there is something against which to assess damages and to pitch an offer.
 
Emma: Thanks Mike, that's great. And I think, you know, to emphasise as well for our listeners, the reason why traumatic brain injury is difficult, whether it's an adult or a child for insurers, is that someone can have what appears to be objectively a very severe brain injury. So a loss of consciousness, a low GCS, bruising on brain scans and significant cognitive symptoms initially, but go on to make a remarkable recovery. Conversely, somebody with a minor objective findings can show significant ongoing cognitive issues.
 
So this makes assessing the long term recovery and effects of a brain injury very difficult. It's even more difficult when you're dealing with a child because of the late development of the frontal lobe, and as you've said the overlap of symptoms of a brain injury with that of puberty. So we often see impulsivity, personality change, irritability, I have two teens at home so can attest to this, that those can overlap with normal puberty and that makes everything even more difficult for not just insurers but experts and barristers and judges as well. I think I'd also like to make the point that when I started handling brain injury cases as an Assistant solicitor some twenty years ago now, it was common for child brain injury cases to settle between the age of sixteen and eighteen.
 
However, I think it's safe to say in recent years claimant and defendant expert paediatric neurologists have been more reluctant to give prognosis at that age, and they've wanted to see the direct impact on employment when the claimant has moved outside the structure of living with their parents and being in formal education, and often they want to see them after a period of employment. So we're talking sometimes after the age of twenty one and it could be the age of twenty three, twenty four, twenty five.
 
I also wanted to make the point that recently I have seen a BBC article in November twenty twenty five discussing research from the University of Cambridge that suggested that the brain stays in the adolescent phase beyond the age of eighteen. So you know that's something to look out for as well. There may be further research in this area. Mike, I'd like to move on to look at rehabilitation.
 
As we've just discussed, there is usually a delay in settlement of child TBI cases in all but the most severe cases until the claimant is over eighteen and often out of further education, which means that rehabilitation is so important. Could you please tell us what's best practice and what our insurers should be seeking to do here?
 
Mike: Well, obviously first and foremost, the aim of rehabilitation is to try and help the individual child recover as best as possible from his or her injuries.
 
They get access to treatments from a host of specialist clinicians and they get that access both earlier and they get treatments more regularly than would usually be available through the NHS.
 
And securing an optimal recovery is clearly in the best interest of the child and his or her family, but it's also in the best interests of the insurer. Because by doing so, the overall compensation award that's needed for the child in the future will also be reduced.
 
And in terms of best practice, perhaps the most important point here is early intervention.
 
It is critical and the earlier treatment can begin the better the outcome picture is likely to be.
 
And if at all possible, this would be on a joint instruction because that allows a greater degree of control to the insurer. And what rehabilitation generally provides is an opportunity for the insurer to gain some information about the case, the nature of the initial insult, what the physical, cognitive and emotional consequences are, and therefore to have some sense of what kind of claim we are dealing with and what the future might look like.
 
Emma: Thanks Mike. I think this crucial issue about collaboration with the other side and if possible instructing a joint case manager is so crucial.
 
The joint case manager means that the claimant has immediate access to all treatment and therapies, it's a seamless service. They're not having to stop, request money from insurers, and they're not sure whether those insurers are going to be happy with the decisions made. So there's a seamless service in respect of the claimant and their family. The advantages of course to defendants is they get access to those records, they have decision making power with regard to any decisions in the rehab, and it also means that they have access to sometimes attending multidisciplinary team meetings, whether with the treating therapists or just at the school with the treating educational psychologist.
 
And it's so important for getting to know the family, understanding what's important to them, and it just builds a much better picture for insurers as to how this claimant's getting on and what the future might look like.
 
Obviously defendants never meet the claimant in normal circumstances or the claimant's family for quite understandable reasons, and we're relying on notes and expert reports, but having that rehabilitation in place that is being monitored, that is being analysed is just incredibly important.
 
So obviously we need to develop that trust and sense of collaboration with the claimant solicitors and their legal team. And we can often use things like agreements not to make offers in an attempt to try and persuade the other side that a joint approach is the best way forward, and I have done that on some cases, and obviously that's also embedded within the serious injury guide as well.
 
The choice of case manager of course is important, isn't it Mike? Could you talk us a bit through why that's so critical?
 
Mike: Indeed it is Emma. Case law has shown that it's really essential that the case manager has sufficient and also recent experience of paediatric brain injuries.
 
And they of course are the individual who is overseeing all aspects of the rehabilitation process and securing the individual child the best treatments available.
 
Another point just to mention here is that in serious injury cases, applications for local authority funding should be considered.
 
They tend to be quite generous to children more so than the money that's available for adults. And of course that is something that helps mitigate against the overall compensation that might be awarded ultimately.
 
Emma: Thanks Mike.
 
I think it's fair to say that experts generally play a really critical role in helping the defendant insurer assess the injury and the likely consequence. Could you talk us through who our core expert team are going to be in these cases? And do you have any tips for insurers or defendants when they're considering exactly who to instruct?
 
Mike: Well, it's the usual core list of experts that we have in dealing with adult brain injuries.
 
We need neurologists, neuropsychologists and a neuropsychiatrist.
 
But importantly they have to have experience of paediatric injury.
 
We will almost always need the assistance of an educational psychologist. Their role is really important in helping understand the but for position for the individual child and how that's now being impacted.
 
And there will usually be a need for care and occupational therapy.
 
Of course, we can in many cases need significantly more experts than that dependent upon the precise emotional, cognitive and functional difficulties that have arisen from the injury.
 
In terms of tips, clearly as I've alluded to already, they need to have paediatric experience.
 
But that extends also to other disciplines such as radiologists and physiotherapists. We need to be instructing those with, again, experience of neurological injury. So neuroradiologists, but also with some interest and experience in the paediatric injury.
 
And that extends really to all experts, the need for experts to have experience in paediatrics. In C and v Sheffield Teaching Hospitals NHS Foundation Trust, Mr Justice Ritchie was critical of the defendant's care and occupational therapy expert for lacking direct and recent experience in constructing, designing and managing care packages for children with cerebral palsy.
 
The case itself is an excellent case which addresses many of the issues in claims of this nature and which highlights many of the pitfalls that should be avoided.
 
In addition to paediatric experience, even neuropsychologists, neuropsychiatrists should have experience in developmental psychology.
 
And in addition, experts need to be assessing the claimants at sufficiently frequent intervals, especially during adolescence.
 
Again, the Sheffield Teaching Hospital's case, Mr. Justice Ritchie was critical of the defendant's care expert for not visiting the claimant between March of twenty twenty and October of twenty twenty two, when the expert ultimately accepted in cross examination that there would have been significant developments occurring in the child during that period of time.
 
Emma: Thanks Mike. And I think just to add from a practical point of view, there are very long waiting lists for some of the experts that we see with paediatric child brain injury cases. So it's always a good idea to get your expert appointments early.
 
And these experts can often be instructed to also help guide us with the rehabilitation, provide advice or an alternative view on what should be happening in the rehab process, and also shed some light even at an early stage on what the claimant's life may look like when they get older and what sort of future losses we're looking at and help with reserving purposes as well.
 
Mike, that actually brings us to the end of this part of the podcast. Thank you very much for your time today. In terms of my own takeaways really from our discussion, firstly obviously the importance of early collaboration with the claimant's legal team. That's key so that the parties can get rehab and support in place whilst the claimant remains at school, which is obviously in everybody's best interest, and particularly because in child TBI cases settlement is likely to be delayed until the age eighteen, for in the most severe cases.

Secondly, getting access to those MDT meetings is crucial to really help understand the claimant's ongoing difficulties.
 
Thirdly, as you've just highlighted, the identity of the experts instructed is crucial to ensure you instruct experts with the relevant paediatric neuro experience, and that they're instructed during the life of the claim and examine at regular periods.
 
And if I could just add myself as a fourth and final point, having an early conference with experts to discuss the difficulties and the challenges in these cases is really important.
 
And as I've said before, involving the experts in assessing the rehab and the direction of the rehab is really important.
 
So thank you so much Mike again for your invaluable advice today. This podcast has been brought to you by the Weightmans Brain Injury Technical Unit and if the listener has any questions arising from any of the matters discussed, please do not hesitate to contact our Weightmans Large Loss team. Thank you for listening.