Solicitor-Advocate Richard Edwards comments on a recent criminal injuries appeal in which he appeared for the parents of a student tragically killed in a hit and run incident in Liverpool

Solicitor-Advocate Richard Edwards talks about a recent criminal injuries appeal in which he acted for the parents of a student tragically killed after being struck by a hit and run driver.

 On 27^th November 2010 Andrew O’Neill died after being hit by a stolen Audi Q5 vehicle driven through Liverpool City Centre by David Gaskell. The vehicle was driven the wrong way up a section of North St John Street, Dale Street and Churchill Way before striking Andrew O’Neill and causing him fatal injuries.  An application for criminal injuries compensation was submitted and rejected by the CICA.  The substantive application is on-going but a preliminary hearing was held to determine whether or not compensation received by the family from the insurers of the vehicle should be offset against any criminal injuries award.  If the offset applied this would effectively end the criminal injuries claim as it was restricted to bereavement damages only.  The First Tier Tribunal decided in favour of the family finding that the position contended for by the CICA could produce absurd outcomes and given also there would be no double recovery the application should continue to a substantive hearing.  This case could be of use to other people who have suffered criminal injuries who wish to avoid the harsh restrictions of the Fatal Accidents Act 1976 and the limitations it imposes upon those who can recover bereavement damages.

The case has featured in APIL PI Focus and the article appears in the link here.

Richard Edwards responds to the Government consultation concerning the discount rate

The Government is consulting on how the discount rate should be set in personal injury claims. The discount rate is an important element in the calculation of levels of compensation paid to those who have suffered the most serious injuries. The rate applied can have a huge effect on the amount of compensation awarded.

The method used is to assume that an injured claimant will invest his compensation and will earn a rate of return over the period of loss. The discount rate is the assumed rate of return.  It is presently assumed that Claimants will invest their compensation in index linked government securities (ILGS). In 2001 the Lord Chancellor, then Lord Irvine of Lairg, set the assumed rate of return of 2.5% according to the average cross redemption yields then available on ILGS. By last Summer the average rate of return had dropped to 0.2%.

The Association of Personal Injury Lawyers lobbied the government hard to reduce the rate. This was because the Claimants were either having to take too many risks to achieve the assumed rate of return or were simply not achieving anywhere near that rate and not therefore receiving full compensation.

In the consultation paper, however, the Government canvasses opinions about the prospect of department from a rate set according to yields on ILGS and towards a calculation based on a mixed portfolio of investments. Such an approach will expose seriously injured Claimants to the inherent uncertainties in stock and money markets and is likely to have the effect that carefully calibrated compensation awards are depleted before the need for the funds has ceased.

This issue has previously been considered by the House of Lords in the well known decision,Wells –v- Wells. I have analysed that judgement and have explained why it is inconsistent with an approach based on a mixed portfolio of investments in an article published in the Solicitor’s Journal, a link to which appears here:- Richard Edwards. The discount rate: seeking to square the circle 12 SJ 157/3.