Rehabilitation is best form of compensation
21 February 2000
It is a regrettable fact of life that all of us can expect within our lifetime to be a victim, or acquainted with a victim, of personal injury.
Society recognises this by increasing layers of insurance cover designed to protect (by way of risk management) and compensate (by way of voluntary or compulsory insurance cover) to an extent that was unheard of only 20 or 30 years ago.
However, we now need to concentrate not so much on the "wants" or "expectations" of an injured individual, but cater for the "needs" that have arisen as a result of the injury and any ongoing disability that arises.
The "want culture" has been encouraged by the instinctive role of litigators whose primary function has been to maximise the amount of damages paid to an injured individual, without measured thought as to how to best achieve the ultimate aim of English law - putting the claimant back into the position he was at immediately prior to the accident occurring.
Success or failure within litigation circles is often judged by the size of the award achieved. But early intervention in accident cases leading to a structured course of rehabilitation leads to a better quality of life. It is better to enable a claimant to return to work than create an alternative that removes the need or the will to work and results in a loss of quality of life.
It is equally important for those advising the paymasters - the insurance industry - to embrace the concept of rehabilitation. All too often lawyers focus on the financial battle that exists between the parties, with little or no concern for the victim.
A proactive insurer or lawyer can quite properly insist that issues of rehabilitation are discussed and, if appropriate, implemented. Such a policy may result in some front loading of claims costs, but the eventual benefits of the majority of cases outweigh such matters. In supporting such a policy we do not simply seek to reduce the level of damages paid.
Damages in the UK directly correlate to the size of premium paid for carriers of compulsory insurance because insurance companies are businesses designed to make a profit. Enhanced damages are reflected in enhanced premiums and the level of damages paid in personal injury actions in the UK affects little more than the premium level imposed.
The purpose of rehabilitation is not to contain payable damages but to go beyond what has become a mere compensation culture.
We must truly adopt the spirit of Lord Woolf's reforms. Lawyers for claimants and defendants need to work in partnership to establish active and progressive rehabilitation, which should be the most important factor the moment a claim is notified.
Lawyers must think of redesigning the claimant's life rather than attempting to compensate for the losses incurred.
It is clear that the public expects, and is entitled to, change in our industry. But to facilitate that change an enlightened attitude is required from those acting for both parties.
In these post-Woolf days, the adversarial nature of litigation is meant to have changed. However, if we are to succeed in true dispute resolution, it will be necessary for all those involved in this field to understand better the interests of the parties and to identify where they coincide.
This is reflected in a joint desire to rehabilitate the injured individual.
Nick Sinfield is managing director at Davies Arnold Cooper.