EWJ June 61 2025 web - Flipbook - Page 87
Given the overlap in symptoms, distinguishing
between a neurodevelopmental disorder and the
effects of a brain injury is challenging for those
responsible for a child’s medical treatment. For example, a child with undiagnosed ADHD might only
be identified after a head injury brings attention to
their concentration problems. In the same way, an
autistic child’s need for support might intensify after a
brain injury, or even due to how they experience a
psychological injury, such as Post-Traumatic Stress
Disorder (PTSD).
way for children. A child or their parent can initiate a
claim any time before their 21st birthday, but taking
early action is always advisable because it may be
possible to secure early rehabilitation which can help
identify the cause of difficulties and in doing so, help
to offset the long term consequences of injury.
In one such claim we’ve handled we took a
comprehensive approach to proving causation by
obtaining neurology, neuropsychology and neurodevelopmental assessments as part of the child’s rehabilitation, which helped us to understand whether
pre-existing factors might have played a role in their
difficulties and to tailor their rehabilitation. We also
conducted a forensic exploration of the child’s medical, educational and social care history, identifying any
prior concerns that could be relevant to the case.
Legal Considerations in Child Brain Injury Claims
A personal injury claim for a child who may have
suffered a brain injury involves careful consideration
that is unique to these types of case, particularly when
there might be uncertainty around whether a child
might also have a neurodevelopmental disorder.
Armed with this evidence we then proceeded to
instruct a paediatric neurologist to prepare a medicolegal opinion, asking them to consider if there was
clear evidence of organic brain injury, and a paediatric
neuropsychologist to assess the child for subtle neurological markers that could indicate a more subtle
brain injury.
For a claim to be successful, it is vital to prove
‘causation’ – that is, whether it is likely some or all of
the child’s difficulties stem from an accident-related
brain injury, rather than being entirely due to a preexisting neurodevelopmental disorder. Understanding and proving a claim, is further complicated by the
fact that children who have been injured in an accident will also frequently suffer from a psychological
injury (such as PTSD or anxiety) that can intensify the
behaviours of a child with a neurodevelopmental disorder. While a psychological injury cannot cause
ADHD or ASD, it may lead to a worsening or a heightened expression of symptoms, making it appear as
though the accident itself caused an underlying
neurodevelopmental disorder.
This structured, multi-expert approach ensured that
all potential causes were examined, allowing us to
build a strong case that accurately reflected the child’s
condition and the extent of the impact of the accident.
The Emotional and Practical Impact on Families and
the Importance of Support
When a child suffers a suspected brain injury, the
impact on the family is significant. Parents often feel
their lives are on hold, under scrutiny from medical
and legal professionals, while they must also manage
the daily challenges of life and financial strain of caring for a child that is injured. Those problems are only
made worse, if they themselves were injured in the
same accident, if they must pause their careers to care
for their injured child, or if they have other children
who also need caring for.
The “Eggshell Skull” Rule is a fundamental principle
of law in England and Wales that requires that the defendant, the person responsible for causing the accident, to take their victim as they find them. This
principle means a person bringing a claim can recover
compensation for the full extent of the harm caused to
them, even if the harm they have suffered is greater
because a pre-existing issue, such as a neurodevelopmental disorder, is made worse.
Caring for a brain-injured child is emotionally and
financially draining. Parents face stress and uncertainty about their child’s future, and they simply do
not receive the same access to medical care, therapy,
and educational support if they are purely reliant on
statutory services. Private rehabilitation and specialist
interventions are expensive, therefore compensation
claims, where possible, can ensure a route to securing
proper support both for now and the future.
High quality, robust expert evidence is key in these
cases to identify what has been caused by an accident,
and so it is vital that parents and carers choose solicitors with extensive experience supporting families of
children who have suffered brain injuries. Those solicitors will typically understand the unique complexities of such claims and be adept at marshalling
multiple medico-legal experts to help build a clear picture of what a child is going through, what difficulties
can be attributed to the accident and what that might
mean for the child in the long term. Experts are often
instructed from the following disciplines:
Support for Families
Supporting families goes beyond the ins and outs of
the legal claim. Being readily available, understanding their childs struggles, and advocating for interim
payments, Education, Health and Care Plan (funding
and financial advice as well as neurodevelopmental
and other assessments can ease the burden they face.
l Paediatric Neurologist/Neurosurgeon
l Paediatric Neuropsychologist
l Paediatric Neuropsychiatrist
l
Educational Psychologists
Defendants will often claim a child’s issues were
pre-existing and unaffected by the accident, or that
the child is not far from where life would have taken
them had the accident never occurred. It is important
In terms of legal procedure, court action must usually
be started within the three-year time limit for personal
injury claims, however this does not apply in the same
EXPERT WITNESS JOURNAL
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JUNE 2025
