Spinal and Brain Injury Compensation Payouts: The Key Issues Affecting a Claim

Life changes, dramatically, following a spinal injury. A long period of inpatient care and support, followed by intensive rehabilitation will be key to maximising the best recovery. One of the early aims from a personal perspective is to come home, to be in your own home, with your family around you.

That objective cannot always be easily achieved, particularly if the seriousness of the spinal injury requires adaptations to be made to the patient’s home. In many instances, it is necessary to move to alternative accommodation; a new home that meets the individual’s reasonable needs, perhaps also having changes made to that new home, to ensure the needs of the spinal injury victim are met.

Moving to a new home will be an expensive exercise and it is unlikely most families will be able to do this, without financial support. For those who have sustained a spinal injury due to the fault of others, and are represented by a specialist spinal injury solicitor, it may be possible to obtain funds from the responsible person, organisation or, more likely, the insurers of the responsible person. Those monies can be obtained well before the case is fully quantified, at a relatively early stage in the claim, once the individual’s accommodation needs are identified.

Home modifications for a brain or spinal cord injury

However, experience illustrates insurers can be reluctant to hand over money, to allow a spinal injury victim to purchase a new home. However, the case of Smith v Bailey [2014] EWHC 2569 (QB) is very helpful to spinal injury victims, as a line of resistance put up by insurers has been taken away, thus making it easier to obtains funds to purchase a new home.

It is worth recording the facts in this matter of Smith. He was riding his motor cycle along the A5 Watling Street near Cannock. A driver was travelling in his car, driving in the opposite direction. The driver attempted to turn right on a green light at a junction. In doing so he cut across the path of the motor cyclist, causing the collision. The driver pleaded guilty to careless driving at Walsall and Aldridge Magistrates court on the 21 September 2012.

Proceedings were commenced on 20 February 2014 in order to make the application for an interim payment, which was issued on 11 March 2014. On 20 March 2014 the driver served a defence which did not admit liability and advanced a plea of contributory negligence that the Mr Smith was travelling too fast, failed to keep a proper lookout, failed to heed or observe the driver’s vehicle and failed to stop, slow down, or take any avoiding action.

At the hearing to decide if Mr Smith should have some of his compensation now, to purchase a new home, the court considered the police report, which was the only available evidence as to the circumstances of the accident.

The police report contained the following evidence from the driver. “I was on the A5 heading from Norton. I got to the junction, lights on green, turning right. To me it looked like there was nothing coming. I had a bit of glare from the sun. I turned right – the motorcyclist came from nowhere. I couldn’t get out of the way.”

There was no further evidence from the driver about the incident. The motor cyclist had no memory of what happened. The report records that there was nothing in the scene evidence or witness information to suggest that the Claimant motor cyclist had been travelling at more than 40 mph; and that at that speed he would have been visible to the driver for some 8 seconds. The report concluded that the accident was the fault of the driver.

In summary the judge agreed and made an interim award of compensation to the motor cyclist, so he could purchase a new home. The driver did not accept the decision and appealed, arguing Mr Smith was partly to blame and that he should not be awarded a substantial sum to allow him to buy a property.

On appeal, the driver lost the argument over Mr Smith being partly to blame. Mr Justice Popplewell agreed with the first judge that the driver was, on the evidence, fully to blame.

The appeal court then gave detailed consideration to the question of whether Mr Smith should have an interim payment of compensation, to include an allowance for accommodation. The appeal court considered Mr Smith’s injuries. By the date of the appeal, he was aged 70.As a result of the accident he sustained a complete spinal cord injury at the level of T10 leading to paraplegia, an unstable fracture of the spinal column at T11/12, orthopaedic fractures and a right pneumothorax and rib fractures. He was wheelchair dependant and will be for the rest of his life. The evidence of his spinal expert was that his reduced life expectancy is now about 11years.

Prior to the accident Mr Smith lived for 33 years in his own two storey, three bedroom, semi-detached property in Staffordshire. Following the accident he was admitted to Queen Elizabeth Hospital in Birmingham where he underwent internal fixation. He had a long stay in the hospital and was then transferred to Oswestry Spinal Cord Injury Unit for a period of specialist rehabilitation on 3 June 2012 and remained in the unit until he was discharged on 12 December 2012. In the meantime, in August 2012, a report was prepared by Mr Valentine, an accommodation specialist. He recommended an alternative home for Mr Smith, which would meet his needs arising out of the spinal injury.

Interim compensation payments for a personal injury

When it came to considering the interim payment appeal, the court applied the principles set out in the case of Eeles v Cobham Hire Services Ltd [2010] 1WLR 409. Those principles promulgated the criteria for determining the level of interim payment of compensation, including the question as to whether accommodation costs should be taken into account at the interim stage, ie well before the full value of the claim can be assessed.

The court reminded itself that accommodation costs are usually to be included within the assessment, at the interim stage. However, the court was also alive to the fact that at a future trial the trial judge might conclude that a claimant’s accommodation needs should reasonably be met by renting rather than buying a property. Nevertheless, in Mr Smith’s case the appeal court was satisfied that renting was not appropriate and thus he succeeded in recovering a substantial interim payment from the driver’s insurers, to pay for alternative accommodation.

What is particularly helpful about this case is that the court went onto explain that in the vast majority of cases purchase of a new home will win over renting and thus in future it will be more difficult for defendants and their insurers to resist an application to the court for money, to buy a new home.

The court’s reasoning behind this was as follows. The court said, generally, whenever there is serious injury, it will very rarely be reasonable to require a claimant to rent rather than buy a property.

The court went on to say that many claimants will have been living in a property they owned prior to the accident. They wish to carry on, as near as they are able, as before and that will mean purchasing another property, suitable for their disability-related needs.

Further, there is a long-standing culture of owning property in this country. That may be changing as more and more people struggle to enter the housing market. But traditionally it is considered a safe and sensible decision to pay a mortgage rather than rent. It can be cheaper and it means that the claimant has a stake in the property market and the opportunity to make money if the property increases in value.

Penultimately, it can be very hard to find a long-term rental property which either is suitable or can be made suitable for the claimant’s needs. Landlords can be fickle and may not welcome wholesale changes being made to their properties, even if the claimant agrees to reinstate the property at the end of the tenancy.

Finally, claimants will very often seek the security that comes with knowing they own their property, can do to it what they will and do not face the ongoing risk of eviction.

Accordingly, where a Claimant wishes to buy a property, it will only be in exceptional circumstances that it would be appropriate to deal with accommodation costs on the basis that a claimant should reasonably have his needs met by renting rather than buying. This is good news for those suffering with a serious spinal injury or brain injury, as one argument raised by insurers to resist substantial interim payments has been considerably diluted by this decision.

Contact our spinal and brain injury solicitors to discuss a compensation claim

If you want to enquire about making a claim for your spinal or brain injury, please contact a member of our team on 01895 207835 or 01895 207295. Alternatively, you can send an email with your name and contact information and brief details as to the nature of the accident/clinical negligence and the injuries sustained to PI@ibblaw.co.uk and one of our team will be able to help you.