Compensation Payouts For Head and Brain Injuries: Interim Payments Available When Fault is Admitted

Recovery from a brain injury can take a long time. During the recovery and rehabilitation process, it is likely the individual seeking brain injury compensation will be suffering losses in the form of lost earnings and, incurring expenses. Fortunately, in cases where the person or organisation responsible for the brain injury, admits they are at fault, then it is possible to obtain an interim payment of the brain injury compensation.

On occasions these brain injury compensation payments are made on a voluntary basis, by the insurer of the responsible person or organisation. However, there are times when an application has to be made to the court, to persuade the latter that the responsible party should make a payment.

About 5 years ago, the process was made more difficult by a decision of the Court of Appeal and since that time, there have been battles in individual cases, to obtain sufficient monies for those seeking brain injury compensation. The vast majority of those battles have concerned people seeking brain injury compensation and spinal injury compensation but the principle of being able to apply for interim payments of compensation applies equally to other cases, such as acoustic shock claims, child injury claims, PIP breast implant claims, hip replacement claims, sports injury claims and medical negligence claims.

The case of Smith v Bailey [2014] EWHC 2569 (QB) is the most recent development in these battles, in which the claimant suffered a serious spinal injury while riding his motor cycle. He was struck by a driver executing a right turn. As a consequence of the serious spinal injury, the claimant required accommodation that would meet his needs and thus made an application in the High Court for monies to purchase a property.

The defendant, or rather his insurers, sought to resist the application for an interim payment on various grounds, one of which was that, when the case finally came to trial, the court may not award a sum to purchase a property but a sum equivalent to renting a property.

The case went to appeal, when it was observed that there may be rare cases in which on the appropriate evidence a trial judge might conclude that a claimant’s accommodation needs should reasonably be met by renting rather than buying a property.

However, it was also stated that whenever there is serious injury, it will very rarely be reasonable to require a claimant to rent rather than buy a property. The court reminded itself of a previous case, when the court said, “There is of course no reason in principle why the future accommodation needs of a claimant should not be met by renting a property. But in practice there are obvious difficulties.

Adapting a home following a serious head or brain injury

It is unlikely that adaptations would be modest, and if they were to cost a significant sum, there would be no assurance that a claimant would only have to pay them once. A claimant would not have security of tenure for the full expectation of his life and thus may have to move from one rented property to another, paying for the adaptations in each case. Indeed the situation may be worse, because as Mr Hopkins reminded the court, in such a situation the claimant may even have to pay for the reinstatement of the property which he is leaving to put it back into the condition in which it had been before the adaptation were made.”

In the case of Smith, the court reflected on a number of reasons as to why a person seeking spinal injury compensation (or compensation for any other serious injury), would not go down the route of renting property.

First, 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. Secondly, 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, something denied to the claimant who rents.

Thirdly, 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. Fourthly, 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.”

As a consequence, the High Court concluded in this case of Smith v Bailey that 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 all those seeking brain injury compensation or compensation for other serious injuries. They can have a high degree of confidence that requests for interim payments of compensation will not be rejected on the grounds that, in theory, a rented property may be available to meet their needs. It is entirely right that they should have security in their own home, particularly after serious injury and thus a decision of the High Court that recognises this important accommodation issue is a good decision for those seeking brain injury compensation.

Making a compensation claim for a serious head or brain injury

If you want to enquire about making a head or brain injury claim, please contact a member of our head and brain injury solicitors 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