Injury Cost Recovery Campaign Update
Trevor Sterling | 03.06.2019
09.05.2017 Eman Hassan
Whilst investigations into the Westminster Attack are ongoing, bereaved families, victims and their loved ones; together with the police and even solicitors, are trying to unravel the tragedy that occurred on 22 March 2017.
Whilst compensation mechanisms are in place to help provide much needed support, identifying the compensator of a non negligent act raises some vexed questions. Who carries the financial responsibility to support the bereaved families and help rehabilitate the injured victims?
When tragedy such as this strikes, lines can sometimes be skewed in relation to who should compensate the victims and/or bereaved families. As a matter of principle should this be the offender, an insurer or perhaps the tax payer?
The question of who compensates in such a tragedy is a grey area and whilst government schemes such as the Criminal Injuries Compensation Scheme fortunately exist, one must consider the alternatives which can give rise to different outcomes.
There are three viable options that victims might choose in relation to compensation which are outlined below:
1. The Criminal Injuries Compensation Authority Scheme
Injuries caused to victims of a criminal act may be compensated via the Criminal Injuries Authority Scheme. This is in essence a government scheme which provides for tariff payments but does not bring with it any responsibility in respect of injury costs recovery for the NHS or indeed the benefits arising from the Rehabilitation Code 2015.
2. An insurer
The recent case of Bristol Alliance Limited Partnership v Williams 2011 confirms that section 145 of the Road Traffic Act requires an insurance policy to cover any liability which has been incurred as result of the use of a vehicle; this includes liability against an innocent third party arising out of a deliberate act.
The effect of this is that injury caused to a victim through a road traffic accident as a result of an uninsured driver may be compensated by the insurers even if the act was not negligent but deliberate. This also carries with it a responsibility under Injury Costs Recovery legislation ensuring that the insurer not only compensates the victim, but also reimburses the NHS for treatment costs (capped at a little under £50,000).
This avenue also includes the use of the Rehabilitation Code 2015 which provides for a Needs Assessment for those injured. This assessment includes physical, social, vocational and, most importantly after a traumatic event, psychological needs. These needs are carefully considered and funded usually at the outset in order to improve outcomes.
3. Motor Insurer’s Bureau
Broadly speaking this is a Government scheme activated where there is no insurer in respect of a vehicle, or where the driver of a vehicle involved in an incident is untraced. The scheme provides for compensation in either respect albeit certain conditions need to be satisfied.
Westminster attack - analysis
Reports suggest that the relevant vehicle used in the attack was a hire vehicle and of course the registration number was identified. Checks can therefore be carried out to identify whether insurance was in place at the time of the incident.
The possible ramifications are:
Insurance in place – this is in many ways the most favourable option as the insurer can compensate bereaved families/victims, and additionally the NHS can be reimbursed for treatment received by the victims of the attack albeit to a limited extent. Perhaps, unsurprisingly, there may be issues with the policy of the insurance giving rise to it being rendered void when the incident involves an act of terrorism.
The Motor Insurer’s Bureau – the MIB recently released an updated supplementary scheme in January 2017 which came into force on 1 March 2017. The scheme now allows victims/ bereaved families to be compensated through the MIB notwithstanding the possibility of this being a “terrorist act”. Given the current climate with the UK being at heightened risk of a terror attack, the changes to the MIB agreement are welcome and necessary to afford protection and support for bereaved families/victims of this type of attack.
The CICA - the attack did not just involve injuries arising from the use of a motor vehicle, but subsequently a direct act on the part of the assailant involving people being physically assaulted, indeed killed, by the attacker. In these circumstances the CICA scheme will most certainly come into play.
There is a point of principle as to who should compensate taxpayers through the various schemes or any relevant insurer in respect of the vehicle. Certainly as the law stands the insurer for any vehicle should make its contribution. Fortunately tragic events like the Westminster attack seldom occur, but when they do we must ensure that protections are put in place to ensure that bereaved families and victims get the help and support they deserve, including rehabilitation.