Legal
When a seriously injured person is injured, there is often a need for larger accommodation. This may be required to accommodate carers, to create a therapy room or to house aids and equipment. Larger houses cost more money, writes Irwin Mitchell's David Withers.
The issue that the Court has, when faced with a claim for damages, is ensuring that the severely injured person’s accommodation needs are met, but also ensuring that the injured person’s estate, when the injured person dies, does not receive a windfall. A property is a capital asset which, based on historical performance, generally appreciates in value over a period of time. If the injured person was awarded the total cost of the property that they now need because of their injury, they would receive damages to purchase the property and their estate would then be able to sell the higher value and larger property upon the injured person’s death, hence the windfall argument.
In personal injury claims, there is a three year time limit (in the vast majority, but not all, cases) to start a claim, writes Irwin Mitchell's David Withers.
If an injured person fails to start Court Proceedings within the three year period and there are no exceptions that apply, they run the risk of the Court finding that their claim has become “statute barred”. In other words, the Defendant would have a complete defence, even if the breach of duty (fault) had been obvious. Under the Limitation Act 1980, the Courts have the discretion to allow cases to proceed even if they are brought out of time.
The thorny issue of bereavement damages in fatal accident cases has recently raised its head again on one of my cases, writes associate solicitor Lauren Haas. Since so few of the families I encounter are aware of bereavement damages it may be useful to summarise the current law in this area and set out what the potential issues are.
What are bereavement damages? Bereavement damages are a fixed sum of money which can be claimed on the unlawful death of a loved one. They are separate from any financial dependency claim, which can of course also be brought.
The Government has recently indicated that they are intending to consult on changing the law in the near future so as to allow level three automated vehicles on the road, writes David Withers of Irwin Mitchell.
There are six levels of automation: Level 0: The driver performs all of the tasks associated with driving the vehicle; Level 1: Some driving features are included but the driver controls the vehicle; Level 2: The vehicle has automated functions but the driver must monitor the environment and be ready to take control at all times; Level 3: The driver is a necessity but does not need to monitor the environment at all times; Level 4: The vehicle can perform all driving functions under certain conditions; Level 5: The vehicle can perform all driving functions under all conditions.
The guidelines seek to redress this lacuna and are reflective of the broader efforts across society to understand and de-stigmatise such conditions. The guidelines stipulate that “the fact that an offender has an impairment or disorder should always be considered by the court, but will not always have an effect on sentencing”. Each case will be fact specific and an individualistic approach to sentencing is encouraged, taking into account the wide range of disorders and the varying levels of impairment between individuals.
By Alice Hall, serious injury solicitor at Irwin Mitchell.
Neurocognitive deficits caused by traumatic brain injury (TBI) can be one of the more challenging injuries to prove and as a Claimant solicitor; it is my client who bears the burden of proving every aspect of their injuries and resultant losses. I have seen that it is often the case that mild TBIs are just one of many injuries, whilst other injuries may present as far more life-threatening, particularly during the emergency stage of treatment. Sometimes, therefore, mild TBIs are either not fully diagnosed at the outset, or they are noted but are not treated as a priority in comparison with other more seriously recognised injuries at the time, which may be more obvious and more pressing.
After a life-changing injury, such as acquired brain injury, it can be tempting for the injured person and their loved ones to want to ensure that they get as much of the best quality rehabilitation that the state can provide or that money can buy, writes Irwin Mitchell's David Withers.
This is because it is generally accepted that the greatest recovery is made in the first few years, particularly in the case of acquired brain injury. When an individual sustains a traumatic brain injury, there are a range of disciplines that may need to be involved including, but not limited to: physiotherapy; occupational therapy; neuropsychology; neuro-psychiatry; neurology; neuro-surgery; dietician / nutritionist; speech and language therapy; personal trainer; counsellor; and support workers. The injured person’s passion for rehabilitation is absolutely vital. If and when that goes, it can be very difficult to regain that motivation. Mind-set in rehabilitation is critical.
The Covid-19 epidemic has had a disproportionate impact on societies most vulnerable, due to social, financial and medical needs, write legal executive Jack Sales and clinical case manager Alexandra Hitchcock...
With many clients falling into this category case managers and solicitors have needed to continue to work in a collaborative and responsive fashion in order to best respond to the clients’ changing needs. This is compounded when the client is not the only person in the household and their care team’s needs also need to be considered. Elderly family members and those with other medical conditions along with roommates working from home, children requiring home schooling and regular paid carers needing to self-isolate have made supporting clients’ needs more challenging.
By David Withers of Irwin Mitchell LLP.
In personal injury cases, lawyers use “The Actuarial Tables with explanatory notes for use in Personal Injury and Fatal Accident Cases”, otherwise known as the “Ogden Tables”. The tables can be found at: https://www.gov.uk/government/publications/ogden-tables-actuarial-compensation-tables-for-injury-and-death. The Ogden tables help actuaries, lawyers and others calculate the lump sum compensation due in personal injury and fatal accident cases.
Litigation, as with the world in general, has changed significantly in 2020. We could not have ever possibly foreseen how during this year we would all have to move rapidly to working remotely and digitally. It may well have accelerated changes in many firms towards digitalisation and a more agile way of working. It is likely that solicitors sitting behind desks each day in a crowded office might be a thing of the past.
How will this huge change which has been thrust upon us affect the way we run our cases? Inevitably, there will be changes which are obvious; for example there are very likely to be more remote court hearings.
