5 July 2012

George - a life changing car crash


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.