George
was travelling in the rear seat of a car being driven by his friend too fast,
in a chase involving other vehicles.
George’s driver failed to negotiate a roundabout, the car turned over
and George, who was not wearing his seat belt, suffered bad head and other
injuries.
He
spent months in hospital before being discharged into the care of his
family. His head injury gave rise to
considerable problems in motivating and caring for himself safely about the
house. His memory was badly affected as
was his ability to retain information, to organise himself and to plan. Our expert neurologist formed the view that
he was not capable of managing his financial affairs and that he needed a
“litigation friend” to represent him in the claim. George gradually got better. He got over his
physical injuries, though he was left with bad scarring.
George’s
claim was complicated by his pre-accident history. He was a young man with only short periods of employment. He had acquired a criminal record and
committed one serious offence before the
accident, for which he was tried and convicted after it and sentenced to a
period of imprisonment. This made it
difficult to assess George’s capacity to manage on his own outside prison and
to calculate what his future loss of income (resulting from his injuries rather
than from his police record) would be.
In fact, the trial of his claim was fixed to come on whilst he was still
a serving prisoner.
Obviously,
the insurers for the other driver made as much as they could of George’s
pre-accident history to try to reduce what they would have to pay. His compensation was to be reduced anyway
because of “contributory negligence” - his failure to wear a seat belt, which
resulted in his suffering far worse injuries than he would have suffered had he
been wearing one. (One other passenger
in the car who was seat belted suffered a broken limb but no head
injuries).
The
insurers also asserted that George was capable of managing his affairs as their
own medical experts considered he had improved dramatically since the early
post-accident period. It was difficult to be confident what the Judge would
find on the conflicting medical evidence. If he was found to be capable, the
value of his claim would be significantly reduced from the claim we put forward
on his behalf.
Shortly
before trial a “joint settlement meeting” was organised and after lengthy
argument and discussion, the insurers increased their offer by degrees to a net
sum well over £400,000 after taking into account the discount for his contributory
negligence. Further, because of his head
injury, there was a risk that George might develop epilepsy and the settlement
agreed (which the Court subsequently approved) included the right for George to
come back to court to apply for further damages at any time during his lifetime
if he should develop epilepsy. The damages awarded to George are called
“provisional damages”, giving the right to return to Court if certain
contingencies arise. George and his family were happy with the settlement and the fact that he would not have to face the possibility that he might be awarded less at a trial.
George
was represented under a no win – no fee agreement and his legal costs were recovered in full from the defendant’s
insurers.
Under
this government’s proposals known as “the
Jackson reforms” which will come into effect in April 2013, George would not
get his costs back in full but would have had to pay for some of them out of
his compensation. Solicitors acting for
claimants such as George have campaigned long and hard to resist these
proposals. The purpose of compensation
is to restore a victim to the position he would have been in had the accident
not happened. People entitled to claim
compensation do not chose to be victims. They pay the price – as he did – for
any contributory fault leading to injury. But it is unfair and wrong that they
should have to surrender part of the compensation awarded to them to enforce
their rights against the person who caused their injury.
