Jodi Gordon - Partner RTALS LLP

In any claim for Personal Injury, it’s up to the Pursuer to establish, on balance of probability, the fault or negligence that resulted in their injury, as well as the value of any claim. The legal process is generally regarded as adversarial. Often, the initial focus is on establishing blame, then the value of a settlement and how quickly it might be achieved. However, there’s another element to a legal claim which I would argue is just as important as the monetary settlement.

At the outset of a claim, insurers and solicitors are under a duty to consider the rehabilitation needs of an injured person as set out in the Rehabilitation Code 2015. The 2015 code is a voluntary code where signatories can agree to prioritise the injured person’s medical, social, vocational and psychological recovery. It also provides early access to, and funding for, rehabilitation that would maximise their recovery.

It is generally accepted that early intervention rehabilitation will improve an injured person’s outcome – targeted and accelerated treatment and rehabilitation, over and above what can be offered under the struggling NHS, can have a significant impact on the level of recovery. It can make the difference between whether someone is able to work again or whether they might be able to walk again. It saves jobs, marriages and improves quality of life. So, at the very outset of a claim, a proactive Personal Injury Lawyer should consider what form of rehabilitation could maximise their client’s recovery.

The type of rehabilitation and treatment required in each case depends on the injured party’s needs and circumstances. An immediate needs assessment from a specialist can be arranged to assess the injuries, current treatment, and further recommendations for rehabilitation. If these are agreed and funding provided by the insurer, a case manager can be appointed to co-ordinate the treatment, allowing the injured to focus on getting better.

At RTA Law LLP, where our solicitors specialise in representing those injured in road traffic incidents, we have a policy of encouraging insurers to engage with us at an early stage.  Many of our clients involved in cycling or motorcycling incidents suffer catastrophic and complex injuries.  We will always seek to approach a case under the Rehabilitation Code and arrange an immediate needs assessment and early intervention rehabilitation. We are signatories and great supporters of the Rehabilitation Code because, for us, it’s not all about the compensation we can recover for our clients, it is more about the best outcome for them both in terms of recovery and settlement.

When the Rehabilitation Code was first introduced, many Pursuer solicitors viewed it with trepidation. Yet, decades on, the Code continues to provide a valuable framework supported by the main associations for insurers and personal injury lawyers in the UK. The Code continues to promote a spirit of cooperation and rehabilitation between insurers and personal injury solicitors as both parties are under a duty to consider the rehabilitation needs of an injured claimant. This duty applies even when liability remains under investigation.

However, more needs to be done to develop a collaborative rather than an adversarial approach between Pursuer solicitors and Insurers. For example, in England, whilst the framework of the law is ultimately the same, solicitors and insurers have been known to take a much more collaborative approach in dealing with a case beyond the agreement of rehabilitation. Often, solicitors and insurers agree to jointly instruct medical experts to provide evidence on injuries. For injured people, this removes the need to be examined by two different medical experts in relation to the very same injuries. Imagine how distressing it must be to have to repeat multiple times to experts of the same specialism about the circumstances of your accident, and how your injuries have impacted your daily life. Imagine the trauma, if those injuries were psychological and you had to submit to countless examinations about the level of your psychological distress. A collaborative approach would ensure duplicate examinations could be minimised as well as reduce stress and anxiety occasioned by our adversarial approach. Further in England, if experts on both sides are instructed, they are obliged to consult with one another and then produce a statement for the Court outlining where they agree and disagree.

We look forward to discussing many of these points with other experts from the fields of medicine, healthcare, law and finance at our Complex Injury Conference in Edinburgh on 8th Sept 2022. Our goal is to agree a collaborative and client centred approach in Scotland which will lead to improved outcome and more efficient working for everyone involved.

Jodi Gordon – Partner – RTA LAW LLP

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