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Published On: May 5, 2015 | Blog | 0 comments

Injured claimants a battle for justice

Unfortunately it seems increasingly obvious that injured victims of accidents who choose to bring compensation claims have an ever increasing battle to gain justice.

Recent changes in legislation leading to massive increases in Court fees mean it has become prohibitive for many of those injured to issue Court proceedings against wrongdoers who are backed by corporate insurers with deep pockets.  Further these large corporate insurers have been handed another weapon by the Government to use in their artillery in the form of legislation which enables them to seek to strike out in its entirety the claim of an injured victim if they consider any part of the claim may not be genuine.  This just reinforces the viewpoint taken by those representing injured people, that insurers view every claim that passes their way as suspicious.  A leading insurers’ solicitor recently denied that this was the case, but said they had a responsibility to act in their clients’ best interests and ensure that each and every part of a claim is investigated and accepted as appropriate.    Who are their clients? Large corporate insurers.  He went on to suggest it would be difficult for insurers to make applications to strike out claims for fundamental dishonesty and the legislation would not be used lightly.    There were many raised eyebrows in the audience, made up of lawyers representing injured people.

Further the recent decision in Grainger v Cooper affirms the law as laid out in Eeles v Cobham Hire Services Ltd, which has made it difficult for accident victims in recent years to get sufficient interim funds during the lifetime of their claim, and limiting the decisions they are able to make about their future.

In Grainger, the claimant was a 22 year old girl who suffered paraplegia when she was thrown from a motorcycle on which she was riding as a pillion passenger.   The accident happened in 2012 and was set for trial in early 2016.  Liability was admitted and judgment entered.  The claimant had been living at home with her parents and during the lifetime of the claim she had received substantial interim payments to enable her parents’ home to be adapted and to provide the care and support she needed.  However, the claimant decided at aged 24 that she wished to move away from the family home and start independent living. This was not an unreasonable decision, but a perfectly natural one.  Absent this accident, she would probably have reached the same decision and made the transition.

However, because of her injuries alone she required substantial funds in order to make the break from the family home.  She needed any house to be suitably adapted and this is where her problem arose.  The law for many years has been detrimental to claimants when purchasing accommodation, making it impossible to claim the full purchase cost of any property, and since the decision in Eeles, it has also become an uphill struggle for any claimant to get sufficient interim funds to move to suitably adapted accommodation until after the conclusion of the claim.

For many years insurers have relied upon the importance of not fettering the trial judge’s discretion to award periodical payments as a means to limit the amounts paid out in interim payments and eventually Eeles confirmed this position.  Without repeating in detail the principles set out by Eeles, essentially, unless the injured party can either show that the damages for the injury itself, past financial losses and capitalised accommodation costs, including future running costs (assessed on a conservative basis) are sufficient to enable any interim payment requested to be no more than a reasonable proportion of that figure, the claimant has to show that there is a ‘real need’ for the interim payment and to show that the trial judge is certain to award a larger capital sum.  This is the downfall for many claimants and was in Grainger.   The problem for Miss Grainger was that she was not considered to have a ‘real need’ to move at that time, but rather it was a desire for her to live independently.   She failed in her bid for further interim funding as Eeles was followed and she could not make out her case at either stage.

Whilst some may see this as correct, to avoid the risk of interfering with the trial judge’s discretion, it is a manifestly unfair decision for the injured claimant.  This is a young woman who simply wanted to make the transition to independent living.   Had she not been on the motorcycle on the day she was, she would have freely been able to make that choice.  However she was, and as a result not only does she have to live the rest of her life with horrific injuries, but the law and the way in which deep pocketed insurers use the law, has meant this young woman has had a basic right taken from her.  This may be the law, but it is not a fair law and illustrates the daily battle injured victims and their lawyers have when seeking justice for their clients.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

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