We are a firm of Solicitors who assist people who have sustained acquired brain injuries.
Each year in the Republic of Ireland, approximately ten thousand people attend hospital as a result of a head injury which may result in permanent symptoms and which symptoms are unique to each and every individual concerned.
Individuals who have an acquired brain injury often have complex rehabilitation needs. Progress and recovery are also unique to each individual.
Our mission statement: To provide a premium level of service to clients who have suffered an acquired brain injury (ABI).
Criminal Inflicted Injuries
At McMahon Goldrick Solicitors, we have many years experience of dealing with the Criminal Injuries Compensation Tribunal. The Criminal Injuries Compensation Tribunal pay out-of-pocket expenses and loss of earnings caused as a direct result of a violent crime, or by serious *injury caused while trying to prevent a crime or save a human life.
Making a Claim
At our initial consultation we will take the details of your accident and injuries and analyse the strengths and weaknesses of your claim. If you have a claim for personal injury, we will inform you of your options. If you decide to proceed we can handle your claim on your behalf and explain the claims process to you.
We will write to you confirming your instructions and outlining the claims process. We will then send letters of claim to the third party and/or his/her insurers outlining the nature of your injuries. We will apply to your Doctor/Specialist for a medical report. We will also request an Engineer’s Report and Garda Abstract Report should they be required for your claim. We will liaise with any potential witnesses to your accident and obtain witness statements where possible.
The Injuries Board
If you decide to proceed with your claim, as a result of the establishment of the Personal Injuries Assessment Board in 2004 (now called the Injuries Board) and the Personal Injuries Assessment Board Act 2003 all personal injury claims, with some exceptions, must be processed through the Injuries Board before going to Court. To submit a claim to the Injuries Board, the following items are required:
– A completed Application Form;
– A medical report;
– Fee of €50.00; and
– Copy of the letters of claim sent to the person(s) you hold responsible for your claim.
A submission is made to the Injuries Board on behalf of our client, that because of the fact that a brain injury is involved, it is too complex a matter for the Injuries Board to deal with it. Under Section 17 of The Personal Injuries Assessment Board Act 2003, the Board has the discretion to issue an Authority which has the effect of releasing the claim from the Injuries Board. The case is then processed through the Courts in the traditional way.
When the proceedings are prepared, we will then stamp, issue and serve them on the Defendant or the Solicitors nominated by the insurance company to accept service. The Defendant’s Solicitors then serve a ‘Notice for Particulars’ on us which are a series of questions requesting further information regarding your claim.
We then take your instructions for the replies and serve replies to the Notice for Particulars on the Defendant or the Defendant’s Solicitors.
The Defendant’s Solicitors then file their Defence indicating whether the Defendant accepts or denies liability.
In some cases, it may be necessary for us to issue certain Motions compelling the Defendants Solicitors to take certain steps for example, to file their Defence or to produce certain relevant documents. Throughout the course of the case we will obtain updated medical reports as required. You should keep a note of all of your medical expenses and any other expenses reasonably and necessarily incurred relating to your claim. It is standard practice in all cases, for the Defendant/ Defendant’s insurance company to request that you attend a doctor(s) from their own panel of medical practitioners.
When the paperwork has been compiled we instruct Counsel to prepare an ‘Advice on Proofs’ which is a summary of the further steps to be taken prior to the trial and identifies the witnesses required. In some cases, a ‘settlement meeting’ takes place before the case is set down for trial and you, your legal advisors, the Defendant and his/her legal advisors will be in attendance. If the case does not settle, we arrange for it to be set down for trial. We will then arrange for a pre-Trial consultation with you to go through the court procedure.
The Litigation Process
When an Authorisation issues from the Injuries Board we will assemble the necessary Statements and Reports such as Medical, Engineers, Garda Abstract Reports and we will prepare a Brief for Counsel (a Barrister) to draft the legal proceedings and arrange for a consultation with you, Counsel and a member of our experienced litigation team.
Going to Court
You will be represented by Senior Counsel, Junior Counsel as well as one of the members of McMahon Goldrick Solicitors experienced litigation team.
Your Counsel will lead you through your evidence in Court. When this has been completed, the Defendant’s Counsel will cross examine your evidence. The Judge may also have some questions. After completion of your evidence, the evidence of any other witnesses will be taken in the same way.
When all witnesses have been heard, Counsel for each side will make any relevant points noted to the Court and the Judge will make his/her decision. The case may be adjourned on occasion to allow the Judge time to make his/her decision. When the Judge delivers a decision, if he/she decides in your favour, he/she will make an award of damages as compensation.
Either party may Appeal the Decision of the Court. An Appeal can be brought against the Judgement on Liability (whether the Defendant was to blame) or on the amount of the Award. There are strict timeframes and procedures for Appeals.
In law, persons under the age of 18 years old are known as minors or infants and they may not bring proceedings in their own name. They must be represented by a ‘next friend’, which is usually one of the child’s parents. Any compensation awarded to a minor is lodged into the court bank account and becomes payable to the minor together with interest when he or she reaches the age of 18 years. Any settlement of a case involving a minor/infant must be approved by the Court.
What is ABI?
An acquired brain injury (ABI) is any sudden damage to the brain received during a person’s lifetime, but not as a result of birth trauma. It may result from trauma to the head, through a road traffic accident, assault or other causes, such as a stroke, brain haemorrhage, infection, lack of oxygen or tumours in the brain. The most frequent type of acquired brain injury is one arising from physical trauma to the head which is also called “traumatic brain injury” (TBI).
All brain injuries can be extremely serious but symptoms are not uniform as brain injuries are varied and complex. The consequences are also extremely varied. People who have survived a traumatic brain injury commonly have symptoms such as;
Cognition – Slowed processing and co-ordination of thoughts.
Concentration – Impaired ability to concentrate.
Reasoning – Difficulty in logical thinking.
Attention – Easy and agitated distractibility.
Memory – Poor or jumbled recall.
Communicating – Difficulty with word finding and expression.
Fatigue – Easily tired (but often unaware of being so) then sharply dropping in mental performance.
Sleep – Long-term difficulty in getting restful sleep.
Headaches – Chronic and sometimes acutely painful.
Sensory – Confusing or painful effects from ‘ordinary’ but overwhelming sensory stimuli.
Anxiety – Becoming excessively anxious, whether for real or imagined causes.
Emotions – Emotional swings and/or un-reactive emotional numbness.
Social difficulties – Behaving or talking in an awkward, embarrassing or socially inappropriate way.
Depression – Stagnating unhappiness with low energy and low self-esteem.
An injured brain, therefore, can result in thinking changes, physical changes and indeed personality and behavioural changes.
Reading and writing skills
Thought processing speed
Problem solving skills
Self-monitoring remarks or actions
Emotional control and mood swings
Appropriateness of behaviour
Irritability or agitation
Excessive laughing or crying
Why instruct a brain injury solicitor?
i. Experience both in terms of processing the claim and also quantifying the claim.
ii. Investigating the claim. Intense early investigation can be the difference between the winning or losing of a case.
iii. Limitation periods.
iv. Bringing a case.
At McMahon Goldrick Solicitors we listen to our clients and provide them with the support and advice that they require. Our experience of acting for those with acquired brain injuries* allow us guide our clients through the litigation process while they and their families adjust to this life-changing injury.
We appreciate fully that the demands of those with brain injuries differ from those who are less severely injured. Our Solicitors handle smaller case-loads than the majority of law firms thus promoting a pro-active and client focused approach.
Ward of court
In the event of a settlement or award being made in favour of a person who has suffered a brain injury, then the question will fall to be considered as to whether this person has sufficient capacity to be capable of managing his or her affairs. In the event that this capacity is absent the Court will refer the matter to the Wards of Court list where a Judge of the High Court will have to consider as to whether to make the individual a Ward of Court.
This process can cause great anxiety for members of the brain injured person’s family. Visitors to the site are referred to the information booklet produced by the Office of the Wards of Court.
In the pipeline, there is an alternative piece of legislation contemplated. This is The Mental Capacity Bill. The Minister has described this Bill as being about adults who are vulnerable in the sense that they may lack some or all of the capacity to make important decisions for themselves. The Bill makes provisions for such decisions to be made, where possible, by the individual themselves or by a carer or ultimately the Court on their behalf. The Bill, should it become law, will modernise the law on capacity contained in the most part in legislation dating back to 1871. The terminology and conceptual framework of that legislation harks back to a time when our undertaking of mental capacity was very different and the treatment of the vulnerable was more harsh and a recognition of fundamental rights was narrower.
The legislation will contain a set of important principals. These will guide persons making a decision on behalf of an adult who lacks capacity. The principals will also guide a Court when it has to intervene in certain cases.
Importantly, the legislation, when enacted, will establish that there is a presumption of capacity. No Court intervention, for example, will take place unless it is necessary, having regard to the needs and individual circumstances of the person. The person will not be treated as a person unable to make a decision unless all practical steps to help that person make a decision have been taken without success. Any act or decision must be made in a way which is in the least restrictive of a person’s right and freedom and must be in that person’s best interest.
Capacity will, in future, be understood in terms of an adult’s cognitive ability to understand the nature and consequences of a decision in the context of available decisions at the time of the decision. That definition of capacity will be time specific and will allow for the possibility that the loss of capacity may be temporary or permanent.
This functional approach to capacity will hopefully allow the person to have capacity in one matter but not in another. This will represent a fundamental change to the current law, under which an all or nothing approach is taken to capacity. This unfortunately does not operate in the best interests of the person who might for some purposes at least be regarded as having capacity.
The legislation will provide that a person is entitled in the first instance to be supported or assisted in their decision making. The person must, on this basis, insofar as reasonably practicable, be permitted and encourage to participate or to improve their ability to participate, as fully as possible in any act done for them and any decision affecting them.
Court intervention will apply only if it is not possible to support a person in exercising capacity or making a decision. The legislation will provide for the Court, or a personal guardian appointed by the Court, to act as the substitute decision maker on behalf of the person who lacks capacity. Where substituted decision making is necessary, the Court will make once off decisions, but where a number of on-going decisions are required, a personal guardian will be appointed by the Court for that purpose.
The legislation will create a new legal role of ‘personal guardian’. Where a person has been found to lack capacity, a personal guardian can be appointed by the High Court or the Circuit Court to make decisions concerning his or her personal welfare or property and affairs. The Court will always have the option of not appointing a personal guardian and making the decision or decisions itself where the matter is urgent and it is expedient for it to do so.
Personal guardians will have the power to make decisions in respect of the personal welfare and the property and affairs of a person. Personal welfare matters will be those, for example, such as the person’s living arrangements, health care and rehabilitation. Property matters will be those matters such as the control and management of the person’s property, legal and financial business. The power conferred on a personal guardian will be limited in scope and duration to that required in the particular circumstances and a personal guardian may have their appointment revoked if they act in a manner which contravenes their authority or if they have not acted in the person’s best interests.
The legislation, if enacted, will provide a framework for informal decision making for carers so that normal every day decisions concerning the care of persons who lack capacity, or whom a carer reasonably believes has a lack of capacity, can be made without reference to the Courts.
On grounds of efficiency, effectively and accessibility, as well as costs, the Government has decided that the power to make decisions on capacity should be retained by the Courts. Concurrent jurisdiction will be conferred on the Circuit Court and the High Court. The Courts will be given powers to access the expertise of a range of professionals, medical and non-medical, to assist in the determination of capacity. It is expected that the Circuit Court, rather than the High Court, will be widely available at less cost to applicants and will provide any necessary accessibility of service. The new title of the High Court and Circuit Court when exercising jurisdiction will be the Court of Care and Protection.
Typically matters will come to Court where they concern the property or affairs of an incapacitated person. Where the matter does come to Court, the anticipated outcome is that the Court will appoint a personal guardian to make the decision or decisions in question. The Court itself will only make once off decisions where the matter is urgent or is otherwise expedient for it to do so.
The Bill provides that certain issues are confined to the jurisdiction of the High Court. The High Court will be the only authority that can make a decision concerning non-therapeutic sterilisation, withdrawal of artificial life sustaining treatment or organ donation.
A new Office of Public Guardian will be established under the legislation. The primary function of the office will be to supervise and monitor the exercise of duties and responsibilities by Court appointed personal guardians and donees of Enduring Powers of Attorney.
Over time, the functions and operations of a new office will replace all of the functions and operations of the existing Wards of Court Office save with the exception of minors.
The Office of Public Guardian will establish and maintain a register of Court appointed personal guardians, Enduring Powers of Attorney and declarations, decisions and orders made by the Court. The Office will supervise donees and personal guardians, receive reports from donees and personal guardians and deal with representations including complaints on the exercise of duties and responsibilities by a donee or personal guardian. It will also act as a guardian of last resort where there is no person willing or able to act as a personal guardian for an incapacitated person.
The supervisory function will be carried out by general or special visitors who can be directed by the Office of Public Guardian to visit a donee, a donor, a personal guardian or a person for whom a personal guardian is appointed. The special visitor, who will be a registered medical practitioner or the general visitor, will have powers to access records relating to the person who lacks capacity.
The public guardian will also prepare and issue codes of practice. These will be prepared in close consultation with expert groups. They will provide guidance for persons assessing capacity, for persons acting as informal decision makers in connection with the care and treatment of others, for donees of Enduring Power of Attorney and for Court appointed personal guardians.
In the event that this Bill is indeed enacted it will remain to be seen precisely the impact on persons who lack the mental capacity to manage their own affairs in respect of any large awards or settlements.
‘Jessica and Ralph, many thanks for your help and support in the last few years leading up to Johnny’s case. Words can’t express our appreciation for all that you have done for us’
To Ralph and Jessica
Many thanks for the thoughtfulness you’ve shown and all your hard work you have done …..’
‘Dear Ralph, I just wanted to express my gratitude and sincerest thanks to you for all your hard work and your professionalism in dealing with my recent case. Mostly I would like to thank you for your compassion and kindness in taking my case on and representing me through the years. I am indebted to you.’
‘Ralph, you don’t realise how much we appreciate the work you have done for us. Words can not express our thanks to you and Jessica.’
‘Dear Jessica and Ralph, On behalf of myself and my entire family , we would like to take this opportunity to thank you sincerely for all that you have done with regards the case and its successful outcome. From the moment we contacted you we felt that we were working with the right people. We really appreciated how quickly you started on the case, how you initially came to see us and the visits to establish a relationship with our Mum. Your professionalism, attention to detail and conduct throughout the entire process impressed us very much and through great communication we always knew what was going on and what was to happen next. Once again a huge thank you for everything and for making a difficult process manageable and we wish you both well for the future. ‘
‘Hi Jessica, On behalf of my dad and myself thank you very much for all your help when we were in court for the two days earlier this week. It was a frustrating time for all of us but you kept us up to date the whole time with what was going on, or not going on, as was unfortunately the case. Thanks also for finding the hotel for us it was first rate.
Please also pass on our thanks to Ralph, he too was very patient in explaining the goings on behind the scene. We also appreciated his efforts in finding us a taxi on the Tuesday. We are lucky to have the two of you on our side.’
Many thanks for your help and support in the last few years leading up to the case. Words can’t express our appreciation for all that you have done for us.
‘Dear Ralph, On behalf of my husband and myself I want to thank you sincerely for your dedication and compassion over the last two/three years in dealing with my son’s case. It has been a long road, very painful at times, but now that we have come to the end of the road, with a very worthwhile outcome, I feel relieved and glad for my son – in that the award enables him to enjoy a higher standard of living than otherwise would have been possible.
Were it not for your encouraging and wise words on that initial phone call we would never have taken on the challenge.’
Support and Outreach / Rehabilitation
Assessment is an essential tool in understanding a person’s needs and prospects for the future. Very often, formal assessments take place during a hospital stay and can be performed by a range of professionals from a multi-disciplinary team such as surgeons, social workers, neurologists, neuro-psychologists, rehabilitation medicine specialists, occupational therapists, physiotherapists, speech and language therapists, nurses and others.
As assessment is the key to understanding the injured person’s current situation and abilities and it forms the basis for the multi-disciplinary team to understand how best to address their future needs.
Most people who are treated for severe brain injuries would be assessed by clinical psychologists or clinical neuro-psychologists during their stay in hospital. If the person has been discharged from hospital, you can ask their GP to refer them to the appropriate professional (eg: psychologist, neuro-surgeon, rehabilitation specialist) working in a public hospital. There can be a lack of knowledge and experience about acquired brain injury amongst many non-specialist medical professionals. You may find yourself in the usual situation of having to ‘educate’ your GP about certain aspects of your family member’s injury. In some cases, it may be possible to locate professionals working privately who are prepared to perform certain assessments for a fee.
Neuro-psychologists are professionals whose field of study is centred on the brain and its functions. Neuro-psychological testing is designed to determine the brain’s capacity with respect to short and long-term memory, abstract reasoning, attention, concentration, executive function, motor skills and other psychological factors. A neuro-psychologist can compare the pattern of the capacity shown in tests with the pattern of a person’s capacities prior to injuries and correlate the results with the nature of the trauma. This can, to a reasonable degree of certainty, determine the person’s limitations as a result of their injury.
(ii.) Rehabilitation treatments
The purpose of rehabilitation is to consider each person’s situation individually and then help them through various therapies and strategies, to maximise their potential. In the case of an acquired brain injury, this can involve physical, cognitive, educational and vocational rehabilitation.
The typical route for a person who has sustained a severe brain injury who requires a neuro-surgeon is admission to one of the two national centres for neuro-science (either Beaumont Hospital or Cork University Hospital).
Following a period of care and assessment, they may then be discharged to their local hospital or sent back home to await rehabilitation or to a long-term residential home or unit.
When hospital rehabilitation is not considered appropriate and in the absence of suitable residential accommodation, a person may be discharged home to the care of family members. Families in this situation often find themselves under strain in an attempt to source further help and support, particularly if the injury is severe. Additionally, many individuals and families are struggling to cope, having by-passed the hospital system entirely. This may be due to a person’s injury going undiagnosed to late on-set of symptoms, injury in another country or a range of other factors.
Visitors to this section of our website are encouraged to visit the website of Headway Ireland at www.headway.ie