Tuesday, 7 October 2014

Futureproofing a personal injury claim for a spinal cord injured person by Andrew Lilley

Andrew Lilley - Partner, JMW Solicitors

When pursuing a case for compensation for someone who has sustained injuries that will affect them for the rest of their life, there used to be only one certainty; that they would receive the wrong amount of compensation. This was because traditionally, lump sum awards were more common and would be based on an educated guess not only as to what the claimant’s future needs would be, but also how long they would live to require that assistance.

Broadly speaking, the life expectancy of most Spinal Cord Injured people is very similar to that of the general population and so it was quite possible that you would be predicting what might happen over the next 70 years.  Ironically, the nightmare scenario for Spinal Cord Injured claimants was that they would live longer than expected and therefore run out of compensation in the later stages of their lives when assistance was most needed.

Thankfully, this position has changed and now as many of the claimant’s ongoing future losses as possible can be included in an appropriately indexed annual payment that is paid throughout the claimant’s life, and so a large part of this uncertainty has been removed (although I have to add the lawyer’s proviso here that there are occasional cases more suited to lump sum payments, but these are the exception and clients will need specific specialist advice on that point.).

The ongoing need to futureproof our clients’ claims was reinforced to me recently, when I learnt of the heart-warming story of Irving Caplan.  Mr Caplan is a tetraplegic gentleman who was able to stand up and make a father-of-the-bride speech at his daughter’s wedding, thanks to a special robotic exoskeleton suit, created by a robotic exoskeleton organisation that specialise in providing independence to mobility impaired individuals by using advanced robotic technology.

Mr Caplan was a cyclist who was involved in a collision with an HGV and is exactly the sort of individual we work with.  His story is a stark demonstration of the need to attempt to future proof your client’s claim to allow access to the latest technology and medical treatments.

I recently settled a case on behalf of a paraplegic client whom I’d been working with, who was originally injured in 2002.  She’s a minor and throughout the course of the claim, one of the issues we needed to be aware of was the need to cater for her as she grew and developed through childhood and adolescence.  Even during that short time there have been developments in wheelchair technology for example that allow new activities to become more accessible and thereby improve quality of life.

It is interesting to reflect that at the date of my client’s injury, home internet use was in its infancy, and communication aids that we all now rely on daily such as social media, iPads and Skype were not available.  When it came to settling the claim, after consultation with the Spinal Consultant I ensured that a sum was included to ensure that provision was made within the claim so that she could keep availing herself of future treatments (which by their nature are unknowable at the time the claim is submitted) as they developed.

Mr Caplan’s story raises further questions as to what could be considered possible.  Clearly the technology referred to is a long way from a practical solution for someone who has suffered a spinal cord injury.  However, it is only 70 years this year since Dr Guttman founded the National Spinal Cord Injuries centre at Stoke Mandeville; only just over 50 years since the first Paralympic games and 20 years ago when I qualified as a solicitor, this sort of technology was entirely inconceivable.  It is both exciting and daunting to consider the potential future aids and equipment that may be available within the lifetime of current claimants.  It is vital therefore that an appropriate expert is selected who is prepared to consider these future possibilities. 

The need to keep abreast of developments and crucially, to raise public awareness of the needs of SCI patients mean that in their 40th year, the work of the SIA is more needed than ever.  Not least to ensure that such cutting edge research into possible uses of new technology is continued.  If the same progress can be made over the next 20 years as has been made in the last 20 years, it is exciting to consider what options we may be able to discuss in the charity’s diamond anniversary (and I look forward to discussing them with you then!).

To get in touch with me to discuss how we are able to help those who have a spinal cord injury, you can call me on 0800 054 6570, or email me; andrew.lilley@jmw.co.uk . 

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