By Associate Solicitor, Oliver Shaw

Introduction

Brain injuries in children, even subtle ones, can profoundly affect cognitive, emotional and social functioning. These areas of function are also often impacted by neurodevelopmental disorders (NDD) such as Attention-Deficit/Hyperactivity Disorder (ADHD) and Autism Spectrum Disorder (ASD). A diagnosis of an NDD or brain injury can have a profound effect on a child’s future.

Challenges arise when a child suffers a head injury, initial medical investigations do not identify obvious damage to the brain, but the child’s behaviour significantly changes. Untangling which symptoms may stem from a subtle brain injury, a psychological injury or a potentially undiagnosed pre-existing condition, such as a neurodevelopmental disorder is complex.

In personal injury claims, parents and carers, as well as the solicitors who support them, must prove it likely that the accident caused at least some of the problems suffered by the child before compensation can be awarded.

Brain injuries, particularly frontal lobe injuries, and the relationship with ADHD and ASD is a complicating factor. However, there are common themes that affect those seeking compensation for such injuries in England and Wales, which are explored below.

Understanding frontal lobe brain injury in children

The frontal lobes are referred to as the brain’s “executive centre”. This is because they play a dominant role in behaviour, personality and decision making. Located behind the forehead – the frontal lobes are where the brain conducts problem-solving, planning, impulse control, judgement and attention. The frontal lobes also contribute to emotional regulation and motivation, which when combined with the other functions creates behaviour. In a developing child the frontal lobe, and therefore that child’s behaviour and comprehension, are still maturing. Meaning that damage to this area can disrupt development, and significantly alter a child’s trajectory in life.

When a child suffers a frontal lobe injury, such as in a fall or road accident, parents and carers, or teachers, might notice changes in behaviour and abilities, but these changes may not always appear immediately. Difficulties can emerge later. Whilst damage will still be present from an injury, problems might only become evident as the child faces increasingly complex cognitive and social demands, typically as they get older and advance in school.

Common difficulties experienced by children who have suffered brain injuries, such as those already outlined (difficulty paying attention, memory problems, impulsivity and poor emotional control) might then manifest in the child’s behaviour. The child might become disinhibited, displaying behaviour inappropriate for the circumstances or have angry outbursts. They might struggle with planning or switching between activities, and instead get “stuck” on one idea or action. This type of injury can also make it harder for a child to empathise and understand others’ feelings, leading to awkward or challenging interactions. Each brain injury is different, because each child is different and the effects of a brain injury are unique.

Because many of these issues mirror the characteristics seen in ADHD and, to some extent, ASD, this is where challenges can arise when bringing a personal injury claim.

The Overlap Between Brain Injury and Neurodevelopmental Disorders

There is a striking similarity between the effects of a frontal brain injury and the symptoms of certain neurodevelopmental disorders. The nature of ADHD is that it involves impaired attention, hyperactivity, and impulsivity which, as noted, are also common problems after child brain injury. Research supports this overlap: one American based study found that diagnoses of “secondary ADHD” (attention-deficit type symptoms arising after a brain injury) are three times more common in children with head trauma than in their uninjured peers (Study) .

Autism Spectrum Disorder (ASD) also shares some similarities with brain injury (Headway – Brain Injury & Autism. By definition, autism affects social communication, behaviour, and sensory processing. However, it is important to distinguish that a traumatic brain injury cannot itself “cause” a child to become autistic; autism is a lifelong developmental condition rooted in genetic and early brain development. The complexity arises in a personal injury claim because a brain injury might cause a child to present with traits similar to those with ASD.

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).

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.

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 pre-existing 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.

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.

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:

  • Paediatric Neurologist/Neurosurgeon
  • Paediatric Neuropsychologist
  • Paediatric Neuropsychiatrist
  • Educational Psychologists

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 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 in their difficulties and 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.

Armed with this evidence we then proceeded to instruct a paediatric neurologist to prepare a medico-legal 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.

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.

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.

Support for Families

Supporting families goes beyond the ins and outs of the legal claim. Being readily available, understanding their child’s 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.

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 that parents feel they can trust their solicitor, so they can be confident that the evidence they give of cognitive, emotional, and behavioural changes both before and after the accident is heard and that they see it being used effectively to support their child.

Thankfully, many children who are investigated for brain injury will have not suffered one. However, where they have a neurodevelopmental disorder, they may still show worsening symptoms because of the effects that a psychological injury, such as PTSD. While not directly linked to the accident, diagnosis of a neurodevelopmental disorder can help a parent secure appropriate educational support, therapy, and long-term care, outside of the claim, giving families clarity and enabling a better future for their child.

In claims we have handled previously we been able to help families secure vital support, including funding for psychological treatment for family members, to help them cope with the emotional burden of caring for their injured child. We have also secured interim payments which have been used for a variety of purposes, including:

  • funding an Education, Health and Care Plan (EHCP) to provide tailored educational supported suited to the child’s evolving needs.
  • respite weekends, allowing families a much-needed break.
  • tutoring, to help the child recover lost ground in their education due to the accident.
  • funding cover transport costs to medical appointments.
  • to replace parent’s lost earnings, were they have been compelled to take time off work due their child’s injuries.

Conclusion

Navigating a child’s brain injury claim where there is a suspicion of a brain injury, particularly where the damage may be subtle and there are potentially co-occurring neurodevelopmental disorders requires careful consideration even by experts in the field. These cases are undeniably complex and can take a long time to finalise because of the evolving effects that these conditions may have on a growing child. However, with the right approach, it is possible to achieve positive outcomes whatever the cause of a child’s difficulties.

Compensation cannot undo the impact an accident may have on a child’s life, or that of their parents, but a successful claim can provide the financial means for a better life. With expert support and determined representation, families can be guided on this difficult journey and secure both the justice and resources their child deserves.