Acquired brain injuries (ABI) refer to any type of brain damage that occurs after birth. These injuries can be characterised through physical impact to the brain, causing bruising of brain tissue (contusion). Other ABIs are caused indirectly, from the stretching and tearing of blood vessels or white matter fibres, the ‘bouncing’ of the brain against the inside of the skull, or the secondary swelling of the brain due to injury-related chemical changes.
ABIs can occur immediately through ‘sudden onset’ injuries, such as a physical trauma from a work accident, a fight or a fall. It could derive from infection or disease such as meningitis. Anoxic brain injuries occur from a lack of oxygen. Strokes can block blood vessels in the brain, causing damage to drug tissue.
ABIs can also occur over time, through ‘insidious onset’ injuries. These gradual impacts to the brain can occur from prolonged alcohol use, tumours in the brain or degenerative diseases including dementia, Parkinson’s disease and multiple sclerosis.
There are cognitive, psychological and physical symptoms of an ABI, including a decrease in concentration and attention, short and long term memory difficulties, communication problems, impaired ability to learn new information, impulsivity, disinhibition, irritability, aggression, headaches, and vision impairment, hearing impairment, paralysis and fatigue.
Sometimes, the symptoms of an ABI can be slow to present or difficult to pinpoint. Almost 2 percent of Australians have been diagnosed with an ABI, but it is believed there are many more Australians who live with the injury undiagnosed.
Symptoms of ABI can drastically alter a person’s perceived personality. It can be very distressing for family members to see changes in their loved one’s behaviours as a result of an ABI.
Those who have their ABI diagnosed can also struggle to come to terms with the extent of their injury. Many only become aware of the full impacts of their injury when they attempt to return to their pre-injury work duties and lifestyle activities.
ABIs can be an extremely stressful and difficult ordeal for those affected by the injury and their families. Accessing compensation can be a vital step in easing financial and emotional difficulties.
The process of pursuing compensation for an acquired brain injury will vary depending on circumstances. A person who has incurred an ABI may have entitlement to statutory schemes, as well as further entitlement to serious injury compensation under common law. If a person has been injured in the course of their work or on the road, they should first seek their entitlements under the relevant statutory schemes (Workcover and TAC).
To pursue a common law claim for a work or road injury, a serious injury must be recognised by way of certificate from the relevant statutory authority. A serious injury is characterised as 30 per cent whole person impairment under the Workplace Injury, Rehabilitation and Compensation Act 2014 and Transport Accident Act 1986.
This evaluation considers the injury itself as well as the long-term impacts of the injury. It can pertain to multiple injuries, but can only take into account physical OR psychological injures. A court can give leave to pursue common law damages if the relevant statutory authority does not issue a certificate.
To pursue a meaningful common law claim for an ABI incurred in other circumstances, such as from an assault or a fall, a significant injury must be recognised. A significant physical injury is characterised as more than 5 per cent permanent impairment under the Wrongs Act 1958. If the injury is characterised as psychiatric, it must be deemed 5 per cent or higher, and if psychological, 10 per cent or higher.
ABIs are typically evaluated at a high level of impairment because they often have a significant impact on a person’s day to day bodily functions and general quality of life.
Negligence or fault
In order to bring an action for serious injury compensation, it must be shown that a company or person was negligent, that this negligence caused an injury, and the injury has ongoing impacts for the affected person. Under common law and the Wrongs Act 1958, negligence is characterised by a duty of care, a breach of the duty of care and an injury because of the breach. Such a breach must involve conduct that falls short of reasonable care and skill.
A person who has incurred an ABI because of a failure of a workplace, driver, company or healthcare provider to exercise reasonable care or skill, may have a serious injury compensation claim.
A person seeking compensation for an ABI may be able to access compensation for economic loss and non-economic loss, including pain and suffering. The court will consider what the person’s life would have looked like without the impact of the ABI.
Economic loss covers past and future earnings, as well as medical expenses. In the case of ABIs, this can also include modifications to the home or other practical aids.
Non-economic loss considers the less tangible impacts of the ABI on a person’s life. Pain and suffering speaks to emotional anguish and loss of enjoyment of life that a person may experience after incurring an ABI.
These claims are difficult to estimate and quantify, and require careful evaluation of an individual person’s circumstance. Typically, the costs of care and future economic loss are the two largest areas of damage awarded to a person who has incurred an ABI.
Achieving compensation for a serious injury can take months or years, depending on a number of factors. This includes whether the injury has stabilised (and therefore an assessment about its long-term impacts can be assessed by a medical panel) and whether the matter can be resolved in an out of court settlement or at trial.
It is important to note that should a person be faced with imminent death, they can make an application to the court for their significant injury to be determined without appearing before a medical panel.
A person diagnosed with an ABI must commence their legal action within three years of discovering their injury OR within 12 years of the negligent act; the right to bring an action is extinguished by whichever occurs first. A person with a disability or under 18 has six years from the time of discovering their injury.
It is important to seek legal advice as soon as practicable, regardless of whether the ABI has stabilised yet.
At Gordon Legal, we understand that acquired brain injuries are a personal issue.
For personalised and individual advice, we offer consultations to discuss your matter.
Please call Gordon Legal on (03) 9603 3000 or our Geelong office on (03) 5225 1600 to speak with a member of our team.
Given the current environment, we are providing consultations over the phone or via video conferencing platforms.
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