[This is a guest post by Joanne Berry of Pannone LLP's Serious Injury Team in the UK.]
The following article provides an overview of the US and UK legal systems regarding head and brain injuries compensation, when said injuries are sustained through accidents. To make the comparison easier, the focus of this comparison will be on head injuries or brain injuries that were caused due to a road traffic accident. The aim is to provide an interesting comparison to encourage debate and discussion of the pros and cons of both systems.
US and UK legal systems work on the fault based principle. As a point of interest, when referring to the UK law in this article, what is meant is the law in England and Wales, since Scotland and Northern Ireland have different compensation laws. The US has both federal and state laws, which differ from state to state, which can make compensation claims more complicated, as motor insurance is not compulsory in all states. For this reason some claimants will have a harder time acquiring justice and compensation. Also dependent on state laws, is the recovery of level of damages. To compare, motor insurance is compulsory in the UK, and there is also the Motor Insurers Bureau, which compensates victims of uninsured or untraced drivers.
In the US awards, defined as compensation for pain, suffering and loss of amenity are determined by a jury, whilst in the UK these awards are made by a judge. The US uses a top down system to distribute the awards, meaning that the awards can be set as a lump sum of money or a structured settlement, thereby creating an annual income. In the UK a bottom up system is in place, meaning the annual income is established by determining the claimant’s financial need based on the injuries, the medical costs involved due to the incident including past and present, as well as the future rehabilitation costs. Once the financial need of a claimant is established, the goal of the process is to meet this need.
The countries’ systems also vary when handling legal costs. In America, the legal costs are commonly dealt with under a contingency fee, so there are no initial costs for the claimant and their family, as the attorney can take a percentage of the compensation, once the case is concluded. This percentage is agreed upon by attorney and claimant at the beginning of the case, and is dependent on the risk involved in said case. In the UK legal costs are recovered from the defendant, and if the case was successful, then 100% of the compensation goes to the claimant.
Goal of the UK’s compensation system of all personal injuries, including head injury, and following traumatic brain injury, is to provide the claimant with enough compensation so that they are in the same position they were prior to the road traffic accident. The process works as follows:
Evidence is acquired from experts within medical and non- medical fields, and as in the US the award is based on pain, suffering and loss of amenity. These are, however, assessed through referencing guidelines, by referencing previous, similar cases, which are concluded, as well as the personal circumstances of the claimant. Financial losses are defined as past and future loss of earnings, medical expenses, treatment, equipment need, and accommodation. For a brain injured claimant, the largest section of an award is the cost of their future care, be it at home or in a different setting, such as a rehabilitation unit. Rehabilitation has a strong focus within the UK’s compensation process, and is based on encouraging both claimant and defendant to work together to asses the injured individual’s rehabilitation needs. As in the US awards are given as sums of money, or periodical payments providing guaranteed for life annual payments based on the individual’s needs and covering both care and case management costs.
The presented legal systems have their similarities and differences, and neither system is right nor wrong, they are different and both in need of improvement. For instance, the process in the UK is a very long one, which can have a very emotional toll on the claimant. The process in the US doesn’t focus as much on the aspect of rehabilitation needs of the claimant, and it is therefore a faster process. Meeting somewhere in the middle of rehabilitation and process length, may be the way forward, as well as working out a fair way of dealing with legal costs. In my personal opinion, the US has a good system with the no initial costs, while the UK has the right idea regarding 100%compensation going to the claimant. Costs are often a hard part to agree upon
We can learn from each other’s laws. It is also good to be aware of different countries’ laws, in case of sustaining head and brain injuries through a road traffic accident, when abroad. It is vital to find an attorney with knowhow of jurisdictional and applicable law rules. You will require specialist advice to ascertain if you can bring your claim in the country of your choice and if there is a choice of jurisdiction which is the most appropriate venue for your claim. It may be that attorneys from both companies are required to work together to ensure the best outcome for you