Anyone who has been involved in a personal injury claim knows that the process can be quite slow – particularly where there is a dispute over the facts of an accident and / or liability. It can take months or sometimes years to get to the stage where liability is resolved and final damages agreed. Often, however, the greatest challenge for an injured party is in the early days after an accident when they need treatment and support and cannot maintain their employment.
The combination of the Pre-Action Protocol for Personal Injury Claims and the Rehabilitation Code applicable to personal injury claims, when used properly, should provide the opportunity for injured claimants with a valid case to get rehabilitation and support at the time they are most needed. The availability of this option is the main advantage of starting the process of a personal injury claim early.
The protocol requires that parties to a personal injury claim should consider, as early as possible, whether the claimant has needs that could be met by rehabilitation, treatment or other measures and to follow the Rehabilitation Code in assessing how to identify these needs and how to address the cost of providing them. The aim of the code is to promote the use of rehabilitation and early investigation so as to ensure that an injured person makes the best and quickest recovery. It encourages claimant representatives and “compensators” (insurers and loss adjusters) to work together in order to achieve this.
In the first instance, the claimant’s solicitor needs to gauge whether early intervention, rehabilitation or medical treatment is likely to, or may possibly, improve the claimant’s present and / or long term wellbeing. Therefore, a good understanding of the limitations that a claimant has, any existing / ongoing treatment and its impact on both the claimant and their family is vital to identifying whether there are needs that are not currently being or are unlikely to be met. The needs to be considered are not limited to medical treatment but cover care and support, transportation issues, aids and equipment and support with employment.
Solicitors are expected to work closely with compensators and to provide sufficient information to enable them to assess the position. The protocol requires solicitors to give full details of the claimant’s injuries, the nature and extent of any disability and recommendations that have been made relating to rehabilitation while the code encourages compensators to consider whether early intervention, rehabilitation or medical treatment is likely to benefit the claimant in the short, medium or long term. They are expected to address the need for rehabilitation at the earliest practicable stage and throughout the case.
For lower value cases, claimant solicitors may arrange for treatment without obtaining agreement from the compensator first but the code is used more often in serious injury claims where the more usual route is for the parties to agree the joint instruction of a rehabilitation specialist to visit the claimant and produce what is known as an Immediate Needs Assessment (INA). This looks at the claimant’s current situation and whether their needs are being adequately met. If the specialist considers that support / intervention / equipment is required, they will set out their recommendations and the associated costs. There is usually then a further discussion between the claimant’s solicitors and the compensator about what aspects the compensator will fund and the practical arrangements.
The Rehabilitation Code operates independently of the position of the claim on liability. By agreeing to follow the code and provide funding, the compensator is not admitting liability for the injuries and if the claimant does not ultimately succeed in their claim, the compensator will not recoup the costs incurred.
Philippa Luscombe, partner in the personal injury team at Penningtons Manches, comments: “Often injured claimants and their families ask us if there is any advantage to starting the process of an injury claim early, particularly when they already have so much on their plate. Our experience is that claims handlers dealing with serious injury claims are generally very accommodating about agreeing to use the Rehabilitation Code and providing funding at an early stage. There is no doubt that this make life easier for the claimant. Early specialist rehabilitation sourced through the private sector can make a real difference to the speed and extent of recovery – a win /win for both sides. It is very important that solicitors take the time to understand the impact of injuries on a claimant and recognise where intervention may help.”