What if Michael Schumacher had someone in England to blame for his accident?

We're well into the third month since former Formula One champion, Michael Schumacher, suffered a severe brain injury during a freak skiing accident in France. The slow, incremental signs of his recovery highlight how complex and careful insurers' responses to victims with similar injuries must be in a claims scenario.

The head injury suffered by Michael Schumacher appears similar to those sustained by victims of road traffic and other accidents. Given the nature of the initial injury and the lengthy period of unconsciousness it is likely he will have sustained severe brain damage. What the future holds is pure speculation - but in a claims scenario, there would already be a hive of activity.

The early focus would be on rehabilitation. Where such treatment is viable, it is far more effective in the early post-accident period. One problem in the UK is that when primary care comes to an end, not all claimants continue with effective aftercare. Opportunities for further improvement are lost.

Acquired brain damage can result in permanent vegetative state, where the cost of private care is enormous - although it may be incurred against a background of significantly reduced life expectancy. And even those with a more favourable outcome will suffer many problems associated with a brain injury. In addition to any physical disability, a common condition is dysexecutive syndrome. The victim is deprived - to a greater or lesser extent - of the ability to initiate actions; to remember even recent events; to control their mood and emotions; and to communicate clearly.

In a compensation claim this has widespread implications. The ability to work may be lost; an extensive support network may be required to safeguard the claimant; if carers are present for substantial parts of the day and/or night, larger accommodation will be required; and various items of equipment will be claimed to assist the victim to do as much as possible for him/herself. Whether or not the claimant has had effective rehabilitation, he/she will likely still require future medical and other therapeutic support. This could range from periodic sessions with a psychologist to occupational therapy, physiotherapy, and speech and language therapy.

Another inevitable outcome of such a severe injury is that the claimant will lack the mental capacity necessary to conduct litigation or manage his/her financial affairs. The fund of damages he/she receives will be under the control of the Court of Protection, with the day-to-day management of the claimant's affairs in the hands of a professional deputy. The majority of these items have an annual cost, which form the basis of the calculation of damages.

Such cases may take many years to conclude, particularly with younger claimants where the true impact of the injury may only become apparent as they mature and fail to achieve the usual milestones. Even with adults there may be a slow process of testing their optimum level of independence before the nature of any long-term care regime can be satisfactorily established.

Assistive technology and medical breakthrough issues are also at the forefront of such claims nowadays. AT tends to be undertaken in respect of matters such as home automation (door openers, environmental controls, computer driven assistance etc). AT tends to relate to matters such as stem cell treatment, spinal cord regeneration and technology - such as the Exo Skeletal systems championed at last year's Paralympics. Such developing factors all further complicate the determination of damages. Once finalised, the majority of the damages will be paid as a lump sum. Items such as future care are now often paid for the rest of the claimant's life via annual periodic payments.

Every case has its own facts. Damages will relate to the claimant's age, needs and pre-accident prospects, but will usually amount to millions. We send our sympathy and best wishes to the Schumacher family. At least they will be spared the additional trauma of assessments by medical and other experts engaged not to offer advice on medical care, but to provide opinions on levels of damages for the lawyers to argue about. The prospect of years of litigation can be daunting for all involved. We should all strive to make that process as painless as possible.

Malcolm Henkè is head of the Catastrophic Injury Group and senior partner at Greenwoods Solicitors (part of Parabis Law)

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