News & Blog

For the latest industry and case news

Brain injury series: Who is at fault following a road traffic accident?

Published In: Brain and Spinal Injury

Each year around 350,000 patients are admitted to hospital with a brain injury according to statistics from charity Headway and between 40% - 50% of those injuries have been sustained by a road traffic accident.

Doctors looking at a head x-ray

Traumatic brain injury is most commonly caused by a significant blow or jolt to the head. It can also occur if a sharp object enters brain tissue. Brain injuries happen as a result of head injury, and is caused by the brain being jostled inside the skull, at a force strong enough to cause tearing of the nerves.

Brain injuries in a road traffic accident can occur in a variety of ways and to a variety of road users. Pedestrians and cyclists are the most vulnerable and, sadly, often sustain the most severe of brain injuries, along with other injuries. However, whilst those in vehicles do have a layer of protection, given the various safety features of vehicles in the modern era, they don’t always escape serious injury.

If you are thinking about making a brain injury claim, either for yourself or on behalf of a family member, you may want more information on the process before you begin. In this stage-by-stage guide Switalskis Senior Associate, Ewan Bain , will explain each step and what to expect during your claim.

For advice about making a brain injury claim, contact us today by calling 0800 138 0458 or email

So how do we prove if another party is at fault for the brain injury you have sustained from your accident?

Brain injury is often life changing. It can affect people’s day-to-day lives and leave people with a number of behavioural and physical side effects.

Where the brain injury has occurred as the result of another person’s negligence on the road, a claim may exist. It is important to note that although you could be partly to blame for the accident, e.g. if you were not wearing a helmet or seat belt, that you may still be entitled to claim, however damages received may be reduced.

Once you have instructed a brain injury solicitor, your compensation claim will be assessed and your solicitor will work with you to help secure early private rehabilitation and support. At this stage  a medical expert will assess the effects the accident has had on your life and gather the evidence to strengthen your case.

In tandem, your solicitor will write to the police to request their records. If the police investigation has been closed, or there has already been a prosecution, those records should be straightforward to obtain, once your solicitors has paid the police their fee. In some circumstances investigations may be ongoing. In these circumstances the police will understandably be cautious as to releasing evidence to solicitors which may prejudice ongoing criminal investigations. The National Policing College have released guidance on this, providing best practice to assist with the conduct of personal injury cases involving serious and life changing injuries. Their guidance can be found here .

Subject to Data Protection and the status of any investigations, details of witnesses may be released, allowing your solicitor to approach them to take statements relevant to the claim. A witness statement must be clear, concise and accurate, so being able to contact witnesses as early as possible will ensure their statements are credible and act as critical evidence.

Other items such as CCTV, dashcam footage and even body worn footage from the officers at the scene can also be used as evidence. These are often vital as they provide video evidence as to what occurred.

After your solicitor has collated what they can from the police and witnesses, they may instruct a barrister to give a view on the evidence and the facts as they are understood. Instructing a barrister, in some circumstances, is sensible to do as the case progresses, as they can risk assess how a court may view the evidence before them. They can also advise on other steps to take.

If the evidence only takes us so far in understanding what happened an accident reconstruction expert may be instructed. Accident reconstruction experts can do incredible work in recreating what happened, on the basis of notes, statements, images and videos. They will visit the scene, carrying out surveys, measurements, recordings and photographs. They will produce reports which offer a detailed view of their investigations, alongside the available evidence. In addition to helping prove fault on the part of the Defendant, the accident reconstruction expert can also often provide a helpful indication to your solicitor and barrister as to any risks of any “contributory negligence” on your part in the claim.

The principle of contributory negligence is essentially where you, as the Claimant, is considered to have contributed to the accident. Where there was negligence on your part, either by not wearing a seatbelt or helmet, or crossing on a ‘red person’, then full 100% of your damages will not be received. Where this has occurred, an expert may be employed by your solicitor to comment on whether the wearing of a seatbelt or helmet would have made any causative difference.

Your legal team will then assess whether there is any risk of you not recovering the full 100% of your damages, as opposed to receiving a lesser percentage. It’s always important to understand the likelihood of any chance of contributory negligence, as the difference it can make, even 10%, can be significant in claims of a large nature.

More often that not, the legal teams involved in the claim, for you and the Defendant, will resolve who is at fault before it ever gets before a Judge in Court. If it is likely that there will be a finding of contributory negligence, but there is an argument with the Defendant on the percentage, then there are ways of resolving between the parties without going to court. These might include making offers in writing, or through Alternative Dispute Resolution (ADR).

In some rare cases, claims will go to Trial to determine fault, or contributory negligence. Going to Trial can be stressful. It is important to work with your specialist brain injury solicitors to understand this and to seek reasonable adjustments for you at Trial. The Courts have implemented guidelines and frameworks to help vulnerable individuals in Civil Trials.

For advice about making a brain injury claim, contact us today by calling 0800 138 0458 or email


Back to News & Blog
Share this post

News, views and information from us and the industry

Related posts

Contact us