The challenges of managing personal injury claims in cases of substance addiction

Adam Chaffe, associate solicitor at Minster Law, talks through the challenges of managing personal claims in cases of substance addiction.

Every client has the right to access justice, including those with addiction issues and it is important to treat them with respect, kindness and professionalism.

Clients who have had or continue to have issues with substance addiction, such as drugs and / or alcohol, will have more complex social, economic and health issues.  Whilst this may present additional challenges for progressing their injury claim, we have a duty to act in their best interests.

Here’s what you need to bear in mind when dealing with such claims.

Clients with addiction are at a disadvantage

With every case, it is essential to get to know the client and build a collaborative working relationship. Clients who have suffered from addiction are more likely to have experienced long-standing disadvantage. For example, they may have been abused, witnessed domestic violence or extreme events; they may have been through the care, police and prison systems. They may have little education and be dependent on state benefits. They may have difficulties with reading and writing, or with understanding the claims process. As such they may benefit from nominating a trusted family member or friend as an authorised person to help with paperwork and to be a point of contact.

Obtain records quickly

Clients with addiction issues are unlikely to volunteer this kind of information upon commencement of a case, so it is very important to obtain medical and DWP records quickly, to then understand their background. The records are likely to demonstrate whether the client was taking illicit substances at the time of the accident. Indeed, the police report should be sought to see if the client was tested for drugs and alcohol at the scene.

Where the client is well known to the police, I have known a client to be treated with a great deal of bias by attending officers and later wrongfully convicted of intent to supply drugs, imprisoned and acquitted 6 months later! Ambulance records should also highlight if the client was intoxicated.

Be aware of credibility smears

Third party insurers and solicitors will probably use the client’s addiction as a reason to smear their credibility. The other side will eventually receive disclosure of records, so if the records suggest the client was using illicit substances around the time of the accident, the insurer or solicitor may raise ex turpi causa.

However, where the client may have taken drugs and then been involved in an accident, for example, as a pedestrian, it does not mean the third-party driver is allowed to run the client over. In this situation, primary liability may succeed but there could be significant contributory negligence. In that scenario, it is vital to obtain dashcam and CCTV footage plus independent witness evidence. The other side might also insist on onerous specific disclosure regarding the client’s criminal records, which should be resisted as it is often irrelevant.

Cases with addiction issues have a tendency to drift

Cases where the client has addiction issues often drift and are left in abeyance for long periods.  This can lead to WIP being locked in where cases take far too many years to settle or become abandoned due to lost contact with the client. Where the addiction is rampant, the client’s focus day to day is feeding that addiction and their environment is chaotic.

The only time they may proactively contact their solicitor is to chase for damages. It can be very difficult to obtain substantive instructions. Sometimes meetings have to be abandoned due to the client being heavily intoxicated. If the client is local to the office, it may take driving to their last known locations to hunt them down. If there is a nominated authorised person, they may be able to bring the client back on board. Sometimes, a tracing agent has to be instructed.

Obtain a signed witness statement at the start

The client’s addiction will always be detrimental to their health, so it should be a priority to obtain a signed witness statement at the start of the case, to be updated throughout.  This means you can act for the late client’s estate in continuing the claim should they meet with an early demise, such as from an overdose or early mortality due to other associated poor health conditions.

Addiction can slow physical and mental recovery

Physical injuries may take longer to heal, if at all. Certain pain medications may be ineffective or contraindicated. The client’s compliance with rehabilitation may be poor, leading to post-operative complications or permanent disability. Addiction will no doubt prove to be a significant barrier to physical and mental recovery.

There is the propensity for these matters to develop into long running pain cases. NHS and statutory services’ records must be obtained to monitor our client’s recovery and ongoing issues with activities of daily living once discharged home. It is worth approaching the other side for an Immediate Needs Assessment (INA) to see how a case manager may recommend private provision to bolster the NHS and statutory provision.

Where the addiction itself is a barrier to rehabilitation, the Defendant must take their victim as they find them, so it may be necessary to ask the insurer to consider providing rehabilitation for the addiction itself before progress can be made towards recovering from the accident-related injuries. Given the bias and stigma around addiction to illicit substances, any INA request may fall on deaf ears.

Be aware of bias and prejudice

Bias, whether conscious or unconscious, is real and prevalent in these cases. Medical experts may take a dislike to a substance addicted client. For example, they might form a dim view of the client due to their medical history, then our client may turn up late to an appointment and be a poor historian, or not present very well. If it appears our client is treated unfairly or prejudiced at an appointment, we will challenge this.

Resolving liability and quantum

Hopefully, liability and quantum will be resolved. Sometimes, these clients do not have bank accounts and ask for damages to be paid to another person. Ideally, the client should open a bank account and the damages be paid to them. If our client is on means tested benefits, personal injury trust advice should be also given.

Watch out for coercion

A client with addiction issues is vulnerable to coercion. They may have drug debts or hang around with unsavoury characters whom our client might have told about the claim and their compensation. As good practice, speak to the client alone about their motivations for wanting to pay money to someone else and ask whether they are acting of their own free will.

If a client has mental capacity to manage their own financial affairs, there is no need for an attorney or deputy, so the client may be put in funds directly. If the client then chooses to spend all that money on illicit substances that is their choice. Albeit it would be sensible to give the client the option of speaking to an independent financial advisor who could advise on how the compensation could be utilised to secure their future, especially in a large multi-track case.