Warren Collins, specialist castastrophic injury solicitor at Penningtons Manches Solicitors looks at the law relating to accommodation claims.
The object of damages is to put the injured individual in the same financial position he would have been had the accident not occurred: no better and no worse. The legal theory is that the damages will only last the for the Claimant’s lifetime and this concept causes difficulties in claims for accommodation.
Most spinally injured and brain injured accident victims will find that the home they lived in before the accident will not be suitable for their long term needs. The Claimant is essentially left with three options: adapt the current accommodation, move into a more suitable home or move into residential care. Residential care is rarely the preferred option for an injured Claimant and adaptations (at least in the long term) may not be a reasonable solution to the claimant’s housing needs. The usual solution is to find a suitable property (usually a single storey bungalow) and then carry out the reasonably necessary adaptations. The problem is funding the purchase.
Purchasing a suitable home
The amount recoverable in English law for the purchase of a property has long been established by following the guidance set out by the Court in the case of Roberts v Johnstone. The Court will look at the purchase price of the property required (having first been satisfied it is reasonable) and then deduct the value of the Claimant’s current home. The resulting figure is multiplied by 2.5% to give the multiplicand. This figure is then applied to the appropriate multiplier (a number based on the Claimant’s life expectancy which is reduced to take account of the fact that the Claimant is getting the money now rather than over the course of his life).
Take a typical example of a young man of 22 who is spinally injured in a motorcycle accident. He was living with his girlfriend at the time of the accident in a property worth £100,000. He has a complete injury at T6/7 and is now wheelchair dependent. Evidence suggests that he now reasonably requires a bungalow at a cost of £300,000. Here, the Claimant not only needs an accessible property but needs extra space to accommodate carers and the extra equipment recommended. The medical evidence on life expectancy is agreed and the acturarial multiplier is agreed at 30. The claimant needs to raise £200,000 (the difference) to purchase the property but the calculation is as follows:
Cost of home required £300,000
Value of current home £100,000
Difference £200,000 x 2.5% x 30 = £150,000
Here the Claimant is left with a “shortfall” of £50,000 and he is relatively young. If we assume an older Claimant with a lifetime multiplier of 10, the shortfall would be £150,000.
Meeting the Roberts –v- Johnstone shortfall
Typically, the Claimant will have to “borrow” from other parts of his claim in order the meet the shortfall. Firstly, the Claimant will be entitled to damages for his injuries – somewhere in the region of £100,000 to £250,000 for spinal cord or serious brain injuries which will largely be dependent upon the level of injury and age of the Claimant.
I often remind clients that most of us fund our housing out of our earnings (either to pay rent or a mortgage). As most spinally injured Claimants are unable to work at their pre-accident capacity, the resultant loss of earnings claim can often help fill the shortfall of damages to fund the purchase of a suitable home.
The costs of moving, reasonable adaptations, extra running costs (gas, electric, water, insurances), maintenance, stamp duty, legal fees and council tax can be claimed in addition to the purchase costs. A solicitor experienced in handling spinal cord injury or brain injury cases will be able to advise you.
Timing of purchase
It is very important to ensure that any property purchased is reasonably required. Case law has shown that where properties turn out not to be reasonably required or suitable, the Claimant can come unstuck in terms of what is recoverable. Buying the wrong property can be a very costly mistake. Expert evidence should always be sought. A Defendant may succeed in its objections to paying a large interim payment if the appropriate evidence has not been obtained. Once again, a specialist solicitor will be able to advise you on these aspects.
Notes: This article was written by Warren Collins of Penningtons Manches LLP in London. Warren Collins is the immediate past national co-ordinator of the Spinal Cord Injury Special Interest Group to APIL (Association of Personal Injury Lawyers of England and Wales). Warren is a Fellow of APIL and a member of, and assessor for, APIL’s specialist brain injury and specialist spinal cord injury panels. He is currently the Chief Assessor of the Law Society’s Personal Injury Panel. Warren is the winner of many awards including the Spinal Injuries Association award for Legal Excellence, the UKABIF Award for Inspiration in Brain Injury and also Claimant Personal Injury Lawyer of the Year. Warren provides initial free advice to all victims of spinal cord injury and brain injury. This article is intended as a guide only and not a substitute for legal advice. Each claim is different and you should seek advice from a suitably qualified legal professional.