Focus on Brain Injury | Legal Comment : Is there a better alternative to accommodation claims?

What happens when a severely injured person needs a larger property to cater for their carers and their aids and equipment? The basis of an accommodation claim is set out in the case of Roberts – v – Johnson, the principles of which remain good law. The Judgment has been criticised by some of the judiciary however, for example the Law Commission and the Civil Justice Council have commented on the unfair results it can lead to for claimants.

As an example, on a Roberts – v – Johnson calculation, an injured individual whose property before an accident was valued at £250,000 but who now needs a property valued at £350,000 can seek to recover 2.5% per year of the additional equity (£100,000) invested in the property for the remainder of his or her life if they have life-long needs from the defendant insurer. This means that the injured individual has to borrow money from other heads of loss, such as loss of earnings, to fund the purchase of a suitable property. This can lead to significant unfairness on claimants, particularly where there is a short life expectancy. Further, if the adaptations result in any significant betterment to the property (i.e. if the property is made more valuable), the amount received is reduced to reflect this.

Irwin Mitchell’s Serious Injury Teams have been advising our clients and their families to settle the accommodation aspect of their cases in innovative ways and on suitable cases, to ensure that the injured person’s needs are met in full in so far as possible. For example, in one of our recent cases, our Serious Injury Team in Sheffield negotiated a settlement for a severely injured client on the basis that the defendant insurer purchased a property for our client to live in for the duration of his lifetime. The defendant insurer then rented the property to our client for a notional sum of £1 per year for the remainder of his life. After our client has died, the tenancy will end and the property will be returned to the defendant insurer. This has avoided the need for our client to borrow money from other heads of loss to purchase a suitable property. It has also meant that he is able to live in a property that is completely suitable for his needs with additional space for aids and equipment and his care team. He will be comfortable for the remainder of his life.

Until the legal principles in the case of Roberts – v – Johnson have changed, our national Serious Injury Teams shall continue to develop innovative ways to fully protect our clients and to ensure that their needs are fully met which includes suitable accommodation.

Key Contact

Neil Whiteley