Twelve months ago the legal world awaited with baited breath the outcome to the decision in the landmark case of Swift v Carpenter which, it was hoped, would resolve the apparent inequity for Claimants seeking to recover damages in accommodation claims.
One year on, it is clear that there has been a significant increase in the amount of damages awarded for accommodation costs to Claimants with normal or long life expectancy which has done much to right the balance in terms of what was being paid for accommodation costs prior to Swift v Carpenter. That means that an amputee or a claimant who has a brain injury but is termed ‘walking wounded’ are significantly better off since Swift v Carpenter has been decided.
William Latimer-Sayer KC of Cloisters Chambers comments: Compared to the situation before Swift v Carpenter, there is no doubt that Claimants are much better off. Before the judgment Claimants would get nothing for the increased capital costs of purchasing a property. Now they get up to 90-95% of the increased capital costs in some cases.
This can only be viewed as good news for Claimants seeking adequate adapted accommodation.
In the 12 months since the judgment it is clear that Claimants are benefitting from the much fairer approach the Courts can now adopt. But additionally there have been some other unexpected benefits. Since Swift v Carpenter there have been further decisions made including Pal v Davison and others, which has meant that it is now much easier for Claimants to seek and obtain adequate interim payments of damages to help them fund a house move. This means that a Claimant can move into long term appropriately adapted accommodation, starting care and therapy that much sooner, and confidently be able to pay for it from an interim payment of damages, calculated with Swift v Carpenter in the background.
But it isn’t all clear cut for everyone. One year on there remain a number of issues which the landmark decision has yet to resolve. The judgment did not deal with those Claimants who have a shorter life expectancy and for them the future remains uncertain. We asked William Latimer Sayer KC about such cases:
Renting property remains an attractive option in the short term but Swift v Carpenter doesn’t apply to short life expectancy cases. Given the judgment in Swift v Carpenter, the Court of Appeal is likely to be generous in short life expectancy cases and ensure that sufficient money is awarded so that any shortfall is no more than the award for pain, suffering and loss of amenity. In other words, it is likely that any subsidy that the Claimant may need to bring to ensure that appropriate accommodation can be purchased will not exceed the damages which have been awarded for pain and loss of amenity which, in turn, means that the Claimant is unlikely to have to use carefully calculated monies awarded for care and therapy towards their accommodation costs.
Another outstanding matter, twelve months on, is the Courts’ approach to the calculation of damages where the Claimant decides to build from scratch. Whilst this was always a viable option before Swift v Carpenter it remains to be seen how this may now be approached. It seems likely that building from scratch may now be significantly less favourable since the approach adopted by the Court in Swift v Carpenter.
Similarly the last 12 months have not resolved how betterment will be approached. The Courts will need to consider where there is improvement of a property in comparison to that prior to any loss, and how this is treated in a post Swift v Carpenter world has yet to be established. And there remains the thorny issue of multiple house moves. While most people will move house several times in their lifetime, it continues to be envisaged that in a serious injury case only one claim for a house move is made or allowed. Whether this is equitable or fair has not yet been addressed.
It is clear that the last 12 months have shown that Swift v Carpenter has been a big improvement for Claimants which it can be argued was long overdue. However, it was never likely to solve accommodation issues for every client and that has proved to be so, especially in cases where there is a short life expectancy. It will be interesting to see how things evolve in the coming months and what innovative solutions can be found.