Relationship breakdown in the context of personal injury claims
By Alice Hall
Alice Hall and Sarah Balfour examine considerations for practitioners if a personal injury case leads to a relationship ending
Tragically, the impact of an injury is almost never felt solely by the injured person themselves. The ripple effect is often felt by partners, children, the wider family, friends and colleagues.
The early days post-injury are often occupied by initial treatment, hospital visits, discharge planning, sometimes without much time to begin the process of adjusting to and coming to terms with the injury and its implications on family and the injured person.
Equally, even with extensive care and support packages in place, the family may often still contribute in terms of caring for the injured person while at the same time receiving little to no formal support themselves. The grief and trauma of coming to terms with the loss of who that person was pre-injury may often be overwhelming and with the impact of having to care for an injured loved one, it’s not hard to appreciate the scale of that challenge.
This is further complicated by the fact that the injured person may lack insight into their injury, while their injury has completely altered all sense of ‘normal’ family life as it was before.
In their 2018 report into the findings of their study into relationship changes after brain injury, Headway concluded that relationship breakdowns after brain injury were attributed to a lack of understanding about brain injury, having less time to see one another and overall challenges in terms of managing the effects of brain injury.
Headway’s findings indicated the dramatic ripple effect that can be caused by brain injury, impacting not only the individual but also the lives of partners, family members, friends and colleagues. While those findings are in the context of brain injury specifically, it isn’t difficult to see how any sort of injury could give rise to significant challenges in any relationship.
On a more positive note, their research found that people reported their relationships with family and friends to be instrumental in helping them to regain their confidence and improve their overall quality of life after a brain injury. Although it was reported that 28 per cent of relationships with spouses ended after a brain injury, 34 per cent reported that their relationship improved with 38 per cent of partners responding in kind.
A key feature that was reported in terms of supporting the successful maintaining of relationships was understanding in terms of the effects of the injury, respect and good practical support with things such as help with daily living tasks, travelling or financial support. Many also reported that their injury had given them a renewed appreciation for life and for their loved ones further strengthening their relationships after their injury.
A serious injury solicitor must be aware of the issues of potential relationship breakdown in the context of a personal injury claim and, therefore, how they can best support clients and provide the most comprehensive advice. In many cases, the possibility of relationship breakdown has potential implications that a claimant must be aware of in their case. For example, if an injured person’s care claim is, either in part or entirely, based on their partner providing care, if their relationship was to break down then their claim for care would then need to be presented differently and it could, possibly, increase its value.
If a claimant’s partner was providing care gratuitously and they were to separate, the claimant’s need for that care to be provided to them is undoubtedly going to be exactly the same and yet they would then be in the position of having to pay commercial care rates for a professional to provide that care to them instead. There may also be considerations in terms of any accommodation claim. For example, a claimant’s case may be based on them and their partner remaining in the matrimonial home and adaptations being carried out to that property to suit their requirements post-injury. If the couple were to separate and sell their property, consideration would need to be given to appropriate alternative accommodation for the claimant, supported by the necessary expert evidence on the point to address the possible options and costings of the same.
It is impossible to predict every eventuality. Yet if an injured person clearly expresses issues in their relationship, which are possibly reiterated in records too, then it may be considered appropriate to address the issue with them by way of formal advice. A claimant in these circumstances should understand the effect relationship breakdown could potentially have on their case, both in terms of quantum and how their claim is presented. This of course needs to be done with sensitivity and discreetness.
Equally, the advice should never influence any decision that a claimant and their partner ultimately make about their circumstances and this issue must be addressed with claimants, again with sensitivity. While these sorts of conversations may feel uncomfortable for claimants, the alternative is that they face the risk of not being given this advice to be made aware of the possible implications of the various scenarios that they could possibly face.
From experience, the vast majority of claimants would far prefer to be given this advice, no matter if it feels somewhat awkward at the time and have that information, rather than face the alternative scenario. This alternative could mean a claimant facing relationship breakdown post-settlement with no real understanding of how that could have affected their claim during its lifetime and, post-settlement, their damages.
There are other practical considerations that a claimant should be aware of. Awards of damages are not automatically ring-fenced in the event of relationship breakdown so claimants may want to consider how they may want to protect their potential settlements depending on their relationship circumstances.
Upon divorce, some heads of loss within a personal injury claim can be more ‘vulnerable,’ including past losses, future loss of earnings and pension. Damages received in relation to, for example, future care and therapy, are usually less open to attack but it depends on the circumstances.
Ultimately, if a married claimant was to divorce and they could not agree financial arrangements between them, then the court would decide the terms. The court has a broad discretion, but the important point is that any and all damages, in theory, received in any personal injury settlement, are potentially open for consideration in such proceedings.
Consideration should always be given in the final settlement order as to the breakdown of the final settlement so that the court is aware of what was awarded for each head of loss. There are other options for claimants to consider, including pre- or post-nuptial agreements setting out how assets, including any current or future damages award, would be divided in the event of separation. While these documents are not strictly binding in current law, they can be very persuasive to the family court if entered correctly.
It's essential that claimants receive comprehensive advice about this issue and not just the effect on their personal injury claim, but also the practical considerations that they may want to think about in terms of managing and protecting any potential award post-settlement.
Alice Hall is a serious injury solicitor and Sarah Balfour is a partner in the family team at Irwin Mitchell LLP irwinmitchell.com