Hazard on the highway - road surface is not in great shape!
Matthew Claxson | 03.12.2019
20.06.2017 Damian Horan
As the country picks itself up from the third appalling terrorist attack in three months many questions are being asked. Among them is, how can we ensure that the innocent victims of these atrocities and their families are properly supported with the care they deserve?
Having worked as a personal injury lawyer for over 20 years, my number one priority is always to secure a fair and equitable outcome for my clients, one which will provide them with the right support they require now and in the future.
Having reviewed the compensation options for victims of the three attacks, I am concerned to see that within the current legislative framework they would not all be treated equitably. This unfair outcome hinges around the use, or rather disuse, of a car – an insignificant difference in such incidences that will be crucial to the support victims can expect to receive.
The reality is that due to a mere technicality – namely the issue of whether a car was involved in a specific incident or not – some victims may be eligible for compensation through the Motor Insurers’ Bureau (MIB), which allows for an unlimited settlement based on the needs of the victim. The situation is, however, different for the victims of the Manchester attack. With no vehicle involved, claims must instead be pursued through the government’s Criminal Injuries Compensation Authority (CICA).
Since April 1996 the CICA has administered compensation to victims of criminal activity according to a tariff set by parliament. The tariff levels offer different awards to applicants according to the relative seriousness of their injuries, with the maximum tariff currently set at £500,000. This means that no matter how profoundly an individual has been affected by a criminal incident, the maximum settlement they can receive is capped at half a million pounds.
The situation is made more unsatisfactory by the fact that under the scheme legal fees incurred when making a claim are also taken out of the tariff. Before 1996, victims of crime, regardless of whether a vehicle was involved or not, were awarded compensation on the common law basis, based on their needs, in addition to legal costs, which is the normal way personal injury compensation is assessed.
Consequently, should there be victims of the Manchester and Westminster attacks who have suffered the same injuries with identical future outcomes, they would be entitled to different support and compensation. A difference which would mostly likely prove insufficient to fully cover the victim’s loss of earnings, care costs, and indeed legal fees. This is a complete injustice and one that needs to be addressed.
The MIB is liable to pay compensation to individuals injured in a road traffic incident when the driver is uninsured. In incidents involving acts of terrorism, insurers can inevitably avoid liability due to policy exclusions, leaving the driver uninsured and the MIB liable.
It is worth noting that under previous rules the MIB could not be held liable for damage caused by an act of terrorism. However, new rules that came into effect on 1 March 2017 – just three weeks before the Westminster attack – removed this exception, allowing victims to pursue a claim against the MIB.
Following the Manchester attack, there has been a brilliant response from both lawyers offering pro bono legal advice and the general public in raising funding for the victims and their families. However, I would question whether this is a sustainable long-term approach.
The government has regulated the CICA scheme to limit its own liabilities; the consequence unfortunately is an inequitable compensatory route for the victims of terrorism. In light of recent events, I would encourage the government to revisit the scheme and consider ways that it can be reformed. A welcome start would be to remove the cap, which arbitrarily deprives victims of the support they require both now and in the future. For the innocent victims of terrorism in Westminster, Manchester, and London Bridge, providing a consistent and equitable compensation approach is the very least we can do.
As featured on The Solicitors Journal: https://www.solicitorsjournal.com/comment/201706/compensating-victims-terror