The Rehabilitation Code was first introduced in 1999 in order to encourage Claimant and Defendant representatives to work together from the onset of a personal injury claim to help Claimants access treatment for their injuries. Initially, this was focused more on Claimants with severe injuries. However, the code was revised in 2015 to state that it should be considered in all personal injury claims, including those involving less severe injuries. The idea is that early intervention will hopefully help the injured Claimant to make as good a recovery as possible. Why would a Defendant’s insurer agree to fund private treatment? In some cases, when they are told that the Defendant’s insurer is prepared to arrange and fund private treatment, a Claimant will initially be slightly suspicious. Given our adversarial legal system, it may initially seem strange that a Defendant’s insurer will sometimes engage regarding treatment without needing any persuasion. However, this is an area where the interests of the injured Claimant and the Defendant’s insurer are in alignment with each other. It is in the Claimant’s best interest to receive the rehabilitation that they need as soon as possible as it will maximise the chances of them making a good recovery from their injuries and getting back to work. This is also good for the Defendant’s insurers, as it will mean that the compensation they have to pay to the Claimant upon conclusion of the claim may be reduced: Personal injury compensation As well as their financial losses, Claimants are entitled to claim compensation for the ‘pain, suffering and loss of amenity’ that they experience as a result of their injuries. If a Claimant makes a good recovery from their injuries, the award that the Defendant’s insurers have to pay is likely to be significantly lower than cases involving permanent injuries where the Claimant experiences serious ongoing problems. Loss of earnings If a Claimant is able to recover sufficiently to return to full time work, this will minimise any claim for loss of earnings. In cases where the Claimant is unable to return to full time work in the future, there could be a significant future loss of earnings claim. As such, it is in the Defendant’s best interests to fund early rehabilitation in order to maximise the chances of the Claimant returning to full time work. Care Where Claimants are severely injured, they may not be able to manage independent living and may need professional care and also help from family members. Where Claimants need care for the remainder of their lives, this can come at a very high cost to the Defendant’s insurers. If they fund rehabilitation at an early stage, this will maximise the chances of a severely injured Claimant being able to regain some measure of independence. Do Defendant’s representatives have to follow the code? The Pre-Action Protocol for Personal injury claims states as follows: ‘The parties should consider as early as possible whether the claimant has reasonable needs that could be met by medical treatment or other rehabilitative measures. They should discuss how these needs might be addressed’. However, the Rehabilitation Code is not legally binding and Defendant’s representatives cannot be compelled to follow it. What can Claimants do if the Defendant’s representatives refuse to follow the code? If liability is admitted and the Defendant’s representative are refusing to engage in any discussions about the Claimant’s rehabilitation needs, we can request a voluntary interim payment which can then be used to fund rehabilitation. If this is not forthcoming, it may be appropriate to issue court proceedings and then apply to the Court for an order that compels the Defendant to make an interim payment. However, this is not ideal as it inevitably involves far more delay than would be the case if the Defendant follows the Rehabilitation Code. If the Defendant denies liability and refuses to consider funding any rehabilitation, this is even more difficult. In such cases, the Court are unlikely to order the Defendant to make an interim payment. It may be necessary to issue court proceedings and ask for a ‘split trial’. Essentially, this involves a ‘mini-trial’ taking place at an early stage solely to consider the issue of liability. If the Court rules that the Defendant is liable for the accident, an interim payment can then be requested. Of course, this is far from ideal as it involves yet more delay when waiting for the ‘mini-trial’ to take place. At Boyes Turner, we are very mindful of the importance of early rehabilitation and the effect that this can have on a Claimant’s recovery. We therefore have agreements in place whereby rehabilitation can be provided with no up front cost to the Claimant, on the understanding that the cost will be included in their claim and repaid if the claim is successful. This can be useful where a Claimant has immediate treatment needs and the Defendant is refusing to engage. However, in our experience, it is better for all parties if a collaborative approach is taken and both parties follow the Rehabilitation Code. If you have been seriously injured in an accident that was someone else’s fault and you would like to find out more about funded rehabilitation or making a claim, you can talk to one of our experienced solicitors, free and confidentially, by contacting us here.
