How loss of earnings is calculated in adult brain injury claims

Throughout my career acting for adults who have sustained acquired brain injuries, I have seen first-hand the devastating, life-changing consequences these injuries can have on both the individual and their family.

One of the most significant consequences is the effect on a person’s ability to work and earn a living. In severe cases, individuals may never be able to return to employment, placing immense financial pressure on them and their loved ones. Even where someone returns to work, their long-term earning potential may be permanently affected.

Ensuring clients are properly compensated for these financial losses is therefore a key aspect of any serious brain injury claim.

Understanding loss of earnings claims

As a specialist adult brain injury solicitor, a substantial part of my work involves helping clients recover compensation for earnings they have lost, and will continue to lose, as a result of their injury.

For some clients, the effects of their brain injury mean they are unable to return to any form of employment. In these cases, the claim will include the income they would have earned throughout their remaining working life, up to their anticipated retirement age.

For others, a return to work is possible following extensive rehabilitation, but often with significant limitations. They may return to the same role on reduced hours, require additional support in the workplace, or need to move into a less demanding position altogether.

In these situations, it is necessary to assess the client’s residual earning capacity – in other words, what they are realistically capable of earning following their injury. The difference between what they would have earned had the injury not occurred and what they can now earn forms the basis of their loss of earnings claim.

Establishing what a client would have earned

One of the first steps in valuing a loss of earnings claim is determining the client’s likely future earnings had the injury never happened.

For many clients who were in established careers at the time the injury occurred, this can be relatively straightforward. Occupations such as healthcare professionals, tradespeople, retail managers, civil servants and lawyers typically have established salary structures and clear career progression pathways. In these cases, we consider the client’s earnings at the time of injury alongside factors such as promotions, bonuses, benefits and anticipated career development. We often look at comparators to help us establish the likely earnings and career progression a client would have had.

However, where a client is at an earlier stage of their career, additional evidence is often required to prove the claim. In these cases we take detailed instructions to understand the client’s career aspirations and plans, before gathering evidence to demonstrate the likelihood of those ambitions being achieved. We would usually obtain our client’s employment records as well as looking at:

• Positive performance reviews
• Academic achievements and qualifications
• Witness evidence from managers or colleagues
• Evidence of career progression opportunities

By building a clear picture of the client’s anticipated career path, we can assess the earnings they would likely have achieved at each stage.

Self-employed clients

Loss of earnings claims involving self-employed clients who own their own business often require more detailed financial analysis.

A key consideration is demonstrating a consistent pattern of earnings before the injury and showing that the business was likely to continue generating similar or increased income in the future. Where clients would have expected significant business growth, evidence is needed to support those projections. This may include:

• Historical accounts and tax returns
• Existing contracts or business opportunities
• Client testimonials
• Evidence of planned expansion or future projects

The stronger the evidence, the better placed we are to demonstrate the true financial impact of the injury.

High-earning clients and those in non-traditional careers

Claims involving senior executives, business leaders or individuals with complex remuneration packages can present additional challenges.

These cases often involve significant salaries, bonuses, share schemes and other benefits, resulting in substantially larger claims. Unsurprisingly, defendants frequently scrutinise these claims closely and seek to challenge the projected losses.

In my experience, individuals in these roles often have highly individual career paths, making direct comparisons difficult. It is therefore essential to gain a detailed understanding of the client’s career intentions and obtain supporting evidence regarding their likely progression and future earnings.

In these cases, expert employment evidence can be particularly valuable. Choosing an employment expert with genuine industry knowledge and experience of the relevant sector can make a significant difference when assessing future career prospects and remuneration.

Assessing residual earning capacity

Some of the most complex cases involve clients who have sustained a moderate brain injury and can return to some form of employment.

These cases require careful analysis and strong evidence because the impact of a brain injury is not always immediately obvious.

Defendants often argue that because a person can manage everyday activities, they should be capable of working. However, years of experience working exclusively with brain injury survivors has demonstrated how misleading this assumption can be.

The demands of paid employment are often underestimated. Cognitive difficulties such as impaired memory, reduced concentration, poor decision-making, fatigue or difficulties processing information can have a profound effect on employability.

A person may appear capable in day-to-day life yet struggle significantly with the pressures, pace and unpredictability of a working environment.

Successfully proving these limitations requires experience, skill and the right expert evidence.

It is often necessary to obtain opinions from specialists across several disciplines, including neurology, neuropsychology, neuropsychiatry and neurorehabilitation.

Equally important is ensuring that those experts address not only the medical consequences of the injury but also their practical impact on the demands of employment. For example, a client may retain previously learned skills and routines but struggle to adapt when faced with a new or unexpected situation. While they may appear capable of performing familiar tasks, they may be unable to solve problems, make complex decisions or respond appropriately to changing circumstances. In many work environments, these abilities are essential.

As a result, what initially appears to be a relatively minor impairment can have a significant impact on earning capacity and, in some cases, leave a person effectively unemployable.

Ensuring fair compensation

Brain injuries are among the most complex and life-changing injuries an individual can suffer. Accurately valuing a loss of earnings claim requires not only an understanding of the legal principles involved, but also a thorough appreciation of how brain injuries affect a person’s ability to work, progress in their career and plan for the future.

At BBK, our Adult Brain Injury Team acts exclusively for adult brain injury survivors. We combine specialist legal expertise with a detailed understanding of the challenges faced by individuals and families living with the consequences of a brain injury.

If you would like to discuss a potential claim, we would be happy to offer a free, no-obligation conversation about your circumstances. Please contact us to speak directly with an experienced solicitor.