Rehabilitation on catastrophic injury cases should work for both claimants and defendants, subject of course to liability attaching to the defendant or being likely to attach.
At the outset of a serious injury case, claimants generally have two short-term priorities:
- Alleviate financial hardship
- Maximise their recovery through effective rehabilitation.
It is right to say that an additional priority soon becomes finding certainty that they lead a reasonable life in the future and overcome, insofar as possible, the often life-changing and very significant and shocking trauma that they have been through.
Insurers have their own priorities:
- Find out sufficient information to enable them to set their reserve
- Get an idea about the short-term priorities to enable them to consider whether funding rehabilitation in full or in part would be likely to make a difference to the future losses and expenses that may arise
- Hopefully build up a sensible and collaborative working relationship with the claimant’s legal team
- Investigate indemnity (policy coverage) and liability.
The tension is often when defendants refuse to commit to making no formal offers – known as Part 36 offers.
In these circumstances, claimants often “shut up shop”. This can often result in the breakdown in communication which is in no one’s interests.
I presented recently at an event organised by the Forum of Insurance Lawyers. I was pleasantly surprised to be invited to talk about my experiences and views on rehabilitation.
The attendees included defendant solicitors and defendant Insurers and re-insurers. There was a lot of agreement in the room.
We agreed that we can all do better. On both sides, there can be distrust; there can be little or no communication. There can be confusion about what is going on.
There can be too much rehabilitation usually as a result of a lack of communication or medico-legal oversight.
This leads to frustration which leads to delay which leads to increased costs and limited or no rehabilitation. In other words, both sides lose.
I left the event feeling positive. Many insurers do want to help those who are seriously injured.
They do want them to make the best recovery possible, both to minimise their future liability but also because they are human and they do not like to see other humans suffer unnecessarily.
On serious injury cases, the best approach, in my view, is often as follows:
- Immediate Needs Assessment and rehab funding made available;
- Early face-to-face meeting;
- Commitment from the defendant not to make an early Part 36 offer until the parties have attended a negotiation meeting to try to resolve the claim;
- Commitment from the claimant that the negotiation meeting can take place at the earliest possible opportunity once the final prognosis has been determined and the evidence has been obtained;
- Commitment to the sharing of information and voluntary disclosure;
- Allow the defendant team to attend the MDT meetings;
- Allow the defendant to meet the claimant;
- Frequent discussions by telephone and, if proportionate, in person;
- Early negotiation meeting when appropriate.
If the parties follow this approach, there is no need for secrecy. The parties can be open, collaborative and focus on the real issues.
If a settlement cannot be achieved at a negotiation meeting, the approach may have to change (such as by unilaterally instructing the case manager to enable them to join you in conferences with the experts) but the relationship between the parties should be positive even if the litigation continues.
In addition, at that stage, the rehabilitation will probably be more (generally speaking) maintenance rather than progressive.
David Withers is a partner at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma. He sits on the National Serious Injury Team’s Technical Committee and advises colleagues across the country on funding and costs issues. He is a senior litigator and brain injury specialist accredited by APIL.