Guest Article by Kate Nicklin, Senior Associate Solicitor at Sintons.
In this article, Kate Nicklin, Senior Associate Solicitor at Sintons, who specialises in Neurotrauma and Personal Injury, discusses how the long-awaited Court of Appeal decision in Swift v Carpenter is a victory for claimants and how it will affect accommodation claims.
Prior to the decision in the Court of Appeal in Swift v Carpenter, and following the introduction of a negative discount rate in (dare) the legal position as set out in Roberts v Johnstone was that the award of damages for the capital purchases cost of a property was ‘nil’. Yes, zero. Reasonable and necessary adaptation costs were recoverable in full. However, claimants effectively needed to borrow’ from other heads of claim to facilitate the capital purchase cost of a property. This did not represent fair or reasonable compensation for claimants.
With the change to a negative discount rate, the position in Robert v Johnson created significant challenges for ALL claimants requiring suitable accommodation to meet needs arising from their often life changing injuries
Even before the introduction of a negative discount rate, difficulties had been faced by claimants in cases where there was a reduction in damages in respect of contributory negligence and for claimants with shortened life expectancy. Even for a claimant with an unimpaired life expectancy, obtaining sufficient funds to purchase and adapt a property at an Interim Payment application stage created real challenges.
In the past, lawyers, architects, property finders and multidisciplinary teams have instead needed to find creative solutions to ensure that claimants have been provided with suitable accommodation.
Fortunately, it has now been accepted in Swift v Carpenter that Roberts v Johnstone did not provide for fair and reasonable compensation for Claimants. Lord Justice Irwin concluded:
“In the context of modern property prices and a negative discount rate, the formula in Roberts v Johnstone no longer achieves fair and reasonable compensation for an injured Claimant.”
Thanks to a brave and tenacious claimant, the decision in Swift v Carpenter has changed the legal landscape of how accommodation claims are to be assessed. The basic principles, which underpin the purpose of personal injury compensation were re-visited and re-affirmed in Swift v Carpenter.
“the Claimant should receive full compensation for the loss which he has suffered as a result of the Defendant’s tort, not a penny more but not a penny less”.
From now on, accommodation claims will be calculated by awarding the additional capital purchase cost of a property less the value of the reversionary interest in the purchased property.
Using the facts and figures in Swift v Carpenter, Lord Justice Irwin concluded:
“For those reasons, I would quash the decision of the judge declining to make any award in respect of an identified need for £900,000 to purchase a more expensive house. In my view the appropriate award, applying a 5% discount rate, and therefore taking the value of the reversionary interest to be £98,087, would be damages of £801,913, and I would so order. To that extent and with that outcome I would allow the appeal”.
Following the decision, an award ‘which would have been nil’ under the Roberts v Johnstone rule became an award of £801,913; almost a 90% recovery of the capital purchase cost of a property.
Any risk of the claimant or the claimant’s estate receiving a windfall by such an approach, should not debar the claimant from having an identified need met, the Court concluded.
This long-awaited judgment is very important for claimants, and the importance will not only be felt at the conclusion of legal claims, but also in securing interim funds to ensure that accommodation needs are met as and when needed.
There are some exceptions to the Swift Formula, particularly for claimants with shortened life expectancies. Although no solutions were offered to the challenges faced by those claimants, the Court commented that:
“It would be desirable to leave some degree of flexibility so that judges can, if appropriate, respond to changes in the market or particular or striking circumstances in a given case. The guideline rate should not be a permanent straitjacket. What was needed was an endorsement of a methodology, a tool which could be adjusted for particular circumstances if need be”.
It is likely that there will be satellite litigation providing solutions for such claimants - time will tell. It is useful that the Court identified that the Swift Formula is not a ‘one size fits all’ solution for all Claimants; it may be adjusted to meet the needs of the claimant to ensure fair and reasonable compensation.
In a previous article, we discussed ‘Compensation claims and house adaptations’, this can be viewed here. We have previously designed a property for a child who sustained a catastrophic brain injury at birth. At the time of settlement, it was the largest court award for compensation made – JR v Sheffield Teaching Hospitals NHS Trust .
The Judgment can be viewed here.
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