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How is a “Brain Injury” Assessed in a Personal Injury Claim?

By August 5, 2021November 12th, 2021No Comments
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Every year an estimated 89 000 cases of new traumatic brain injuries (TBI) are reported annually in South Africa. This information is according to the National Institute for Occupational Health (NIOH). Half of these are caused by motor vehicle, bicycle or vehicle-pedestrian accidents. For victims of these accidents, they may be able to pursue a personal injury claim. 

However, Jeanelle Wright, Associate Attorney at Adendorff Attorneys, says that the injury must be severe for it to be valid. “Having a scratch on your forehead after an accident wouldn’t necessarily qualify you for a valid claim for general damages against the RAF. As personal injury attorneys, we will explore whether or not the claimant has been left with a long-lasting brain injury. Trauma to the scalp, skull or brain is considered a head injury, but not always a traumatic brain injury”.

Assessing a Traumatic Brain Injury

For victims of an accident, the road to recovery starts with the most immediate medical interventions in a hospital. This can include life-saving surgery or time spent in a High Care facility or Intensive Care Unit so the medical team can stabilise their condition. A period of rehabilitation usually follows, but the victim’s life is technically out of danger. 

However, once the victim returns home to their “normal” life, the long-term effects of the injury often become more apparent. It is usually when the family of a victim will approach a personal injury lawyer.

When discussing a case with a lawyer, the lawyer will ask some key questions. For example, as the victim, do you feel you’ve been hindered in any way? Do you find daily tasks more difficult than you did before the accident? “What we want to establish is: whether the client’s ability to cope with their normal life has been affected by the head/brain injury that they have sustained as a result of the motor vehicle accident,” says Jeanelle. 

This is because not all brain injuries manifest in an apparent physical disability. The effects of the accident on a victim often leave subtle personality changes too. This is why the personal injury lawyer will also interview the victim’s family to get their perspective on the changes, explains Jeanelle.

“We ask if they see any behavioural differences in their injured relative. It can include moodiness, sleepiness or recurring headaches, or even a lack of ability to concentrate or increased sensitivity to noise or light. These are all symptoms that might point to the fact that there is a brain injury with long term effects caused by the accident,” says Jeanelle.

According to the NIOH, while a TBI may impair cognition (concentration, memory, judgment and mood), it also has the following effects:

  • It can affect movement abilities (strength, coordination and balance).
  • It can impair sensation (tactile sensation and special senses, such as vision and sexual function).
  • It can lead to behavioural changes and consequences on daily living activities.
  • Gastrointestinal complications affect half of TBI victims (hepatic dysfunction, bowel incontinence, dysphagia, and consequent nutrition problems).
  • Disturbance of vision and equilibrium. 

Claiming from the RAF for TBI

Because of the devastating effects of a severe brain injury on a victim’s life, pay-outs in compensation in South Africa are typically high. For example, in 2018, the RAF settled a claim in the High Court for R6,146,509.00. The victim was left with a traumatic brain injury and multiple fractures that negatively impacted her life after a head-on motor vehicle collision. 

The RAF settled another woman’s claim for R3,609,295 after she suffered a head injury that left her with memory issues and changes in behaviour after being injured in a motor vehicle crash as a passenger. 

“This is where the expertise of a personal injury lawyer comes in,” says Jeanelle. In the above case, the victim was offered a settlement for R600,000 by the RAF, but she got the higher compensation she deserved with assistance from a personal injury lawyer. Jeanelle recommends that claimants should not accept settlement offers from the Road Accident Fund without the aid of a personal injury lawyer. The compensation that the courts would likely award is more appropriate and fair to victims in most cases. 

Adding Weight to a Case

When approached by clients with a suspected brain injury, a personal injury lawyer will likely ask if they have copies of an MRI scan done at the time of the accident or afterwards. 

While it is helpful for the personal injury lawyer, you don’t need to have copies of your medical reports. If they believe you have a valid claim for a traumatic brain injury, they will find copies of the records from the hospitals, doctors or institutions where you were treated. When you work with Adendorff Attorney, you also have access to our excellent medical team that includes neurologists, that will compile detailed reports to support your claim.  

Been in an accident and want advice about if you have a claim for a serious brain injury?

Our friendly attorneys are waiting for your call. Adendorff Attorneys has over 20 years of experience helping victims with claims for compensation against the Road Accident Fund.

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