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Landmark housing ruling for seriously injured claimants

SERIOUSLY injured claimants can now get compensation to purchase accommodation on top of their damages, following a landmark High Court ruling. 

The claimant, Charlotte Swift, had been awarded more than £4m by the High Court in 2018 after losing her leg in an RTA seven years ago. But she was told she would not receive the £900,000 needed to fund the capital costs of larger accommodation required due to her injuries. The court ruled that she will now recover more than £800,000 rather than the zero set as a result of guidance by the Court of Appeal in Roberts v Johnstone in 1989.

This will have huge ramifications for many people, as PETER KELLY, legal director at Lime Solicitors discusses …

On Friday 9 October the Court of Appeal delivered a long awaited and momentous judgment in the case of Swift v Carpenter, which has clarified and defined the entitlement of seriously injured claimants, especially those with restricted mobility problems, to recover the increased accommodation costs they have incurred as a result of their injuries.

Permitted claims in the UK Courts for the most seriously injured claimants have long included a range of heads of damage such as the costs of nursing care, aids and equipment, loss of earnings, the cost of additional transport needs, specialised holiday requirements, therapy and medical costs, in addition to the damages award for the pain and suffering of the claimant as a result of the injury itself.

Until last week, claims for increased accommodation costs were fundamentally governed by a long out of date formula which was based on a complex assessment of the future funding of those costs.

Since the 2008 financial crash and the subsequent, huge reduction in worldwide interest rates, that formula, which relied on anticipated higher rates to produce a fair assessment of an accommodation costs claim, gradually became redundant.

The Court had previously reached the methodology involved in this formula as it had to weigh up two potentially contrasting issues or principles in the assessment of a claimant’s additional accommodation costs – the principle of fair compensation to the claimant for those costs, and the avoidance of over-compensating and giving the claimant a ’windfall’ award over and above the costs incurred, in the form of an ever appreciating asset – the new property purchased by the Claimant.

The principle of the avoidance of over-compensation meant that it was not possible to claim the full capital cost of new accommodation; claimants were routinely left with no option but to purchase a suitable property using the general damages award for their pain and suffering, which in many instances was insufficient to cover the cost.

The Court of Appeal, having heard the evidence of financial and investment experts giving evidence in the Swift v Carpenter case, have now set on a new formula which allows the Claimant to recover the full costs of the new accommodation, with a discount or reduction based on the additional future value of the property concerned to the Claimant’s estate once the Claimant’s use of the property has come to an end.

This means that Claimants can now expect to include in their personal injury claim, and recover, the majority of the capital costs of the property they will need, and enable them to purchase a suitable property using this part of their award.

This will help provide to Claimants an environment that caters for their particular needs, such as additional rooms for carers, adapted entrances, kitchens, bedrooms and exercise areas, ramps, widened doors and digital security and device systems, all in, usually, a single level property.

Needless to say, it is essential that Claimants retain a suitably experienced and qualified legal team to ensure that adequate evidence is presented to the Court, and their claim is prepared in the correct manner, so that the new accommodation claim principles introduced by the Court of Appeal can be fully applied in their case.

Peter Kelly, Legal Director at Lime Solicitors

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