Personal Injury -The Reality

Is there a lack of knowledge and understanding about personal injuries claims being pursued in England & Wales? Apparently so. Reading the BBC’s news coverage [] regarding road traffic accidents this week, and the criticisms made in relation to the many thousands of injured people who have suffered (or continue to suffer) with the potentially debilitating extension acceleration injuries to their cervical spines (necks) of varying severity, commonly referred to as “whiplash” type injuries, the reports suggest that victims are ‘making it up’.

It appears that on the face of it, the Government and Insurance industry are suggesting that hundreds of thousands of people who have been compensated for sustaining ‘whiplash’ type injuries must be disingenuous and that the individual medical experts, consultants in accident and emergency medicine, consultant orthopaedic surgeons, and other such experts, are happy to draft and put their names to medical reports in support of such seemingly disingenuous ventures. Really?

Why is the car industry required to install headrests to vehicles if drivers and their passengers cannot sustain injuries, which, seemingly, don’t exist any longer? Surely headrests cannot be just for support, comfort or perhaps for aesthetic appeal only? Does the general public honestly believe this to be true? I would like to think not.

Doctors provide medical reports to provide a diagnosis of structural impairment (soft-tissue injury to anterior supporting structures of the neck, vertebral artery compromise, sympathetic impairment, horizontal tear of intervertebral disc) or commonly provide reports indicating injuries of subjective impairment (neck pain and stiffness, pain / numbness in arms or interscapular area, headaches, vertigo, dizziness, dysphagia, blurred vision). In the latter, it is considered that 45% of such symptoms can last up to five years and 10% up to 10 years.  Records also show that 10% of extension-acceleration injury victims have to change their occupation or modify their leisure activities.

Or perhaps the BBC and Mr. Jack Straw are correct… maybe these statistics are false and the victims, their treating clinicians and their independent medical experts are all making it up?

However, the British general public won’t be easily fooled by these nonsensical suggestions – but how it has become front-page news, or of headline significance on the BBC’s network-wide bulletins, baffles me. For the government to be attacking injured victims is a bizarre… although it is one way of avoiding the economical flack it receives for a day or so I guess.

I have read, and am somewhat embarrassed by, our MP’s lack of knowledge (or advice given to them from those who profess to know) of the proposals to help small and medium sized businesses by reference to an ‘apparent’ claims compensation culture, which the Government actually knows, simply does not exist. Each injury claim in England & Wales is mandatory required to be registered under the Social Security and Recovery of Benefits Act.

The statistics provided by the DWP show that claims (apart from road traffic accidents – see further comment below) have declined over the past few years, not increased. How therefore, can there be a claims compensation culture?

During the JPIL Conference early last year (Journal of Personal Injury Law Conference)  AXA Insurance provided a number of statistics to show, they say, that personal injury claims were increasing year on year and adversely affecting the cost of motor insurance premiums as a result. Upon direct questioning however, the same representative was unable to differentiate the statistics between ‘damage only’ claims and ‘injury claims’. The insurance companies seem to be forgetting that they are offering insurance policies, but by the same token, seem to be suggesting that simply because they do, that there has to be retribution against such Claimants for eating into their profits. How dare injured or accident victims parties claim!

It is not the so-called ‘Claim Culture’ that the core problem damaging the profitability of small and medium size businesses – it is the recession.

Mr. Cameron suggests that he will interfere with legislation to make it harder for claims to succeed against employers with the help of the Health & Safety Executive (when did the HSE start to turn legislature?) The legislation he is referring to are the various ‘workplace regulations’ brought into law to ensure compliance with EU Directives back in the early 90s (so not new and damaging laws which have all of a sudden ‘come into force’). These Regulations are in many ways not drastically different (and indeed are often compared with) earlier legislation such as, the Factories Act, which came into force in 1960s.

Are we leaving Europe to get rid of the requirements to comply with EC Directives in order to help these claims stricken businesses and the cash-strapped insurance industry?

In all of this, there seems to have been little mention of Benefits! If a personal injury claim is successful (the claim having been mandatorily registered with the DWP), Benefits paid by the DWP are recouped on a ‘like for like’ basis. For instance, Incapacity Benefit against recovered lost earnings and so on.

Has Mr. Cameron or his colleagues considered the impact any of this will have on Benefits recovery (recoupment of Taxpayer’s monies runs into millions) which could be more usefully redistributed elsewhere? It could be used, perhaps to help out further failing businesses like high street banks and other such needy organisations?

If any claim is brought and has little or no prospect of success, the Defendant or their insurance company can defend it, no claim can succeed without merit. Why does the multi-billion Insurance Industry need a helping hand from the Government? Or is this Government happy to help them increase their profits like they have with the failing banks? All of this, I am afraid, points to the Insurance Industry championing the Government to enable them to make more money.

I accept there should be greater regulation of Claims Management Companies and how they advertise and operate (ironically, the insurance industry has done very well over the years in selling on such claims in the past as referrals).  No win, No fee (why not?)

Conditional Fee Agreements, commonly referred to as ‘no win, no fee’ agreements are not new. They have been around since the early 90s. Solicitors’ costs are ‘postponed’ during the claim and payable upon a successful outcome – the Defendant and their insurance company then having to pay the costs, in addition to any recovered damages. Such forms of retainer are NOT limited to personal injury claims only.

It also seems that the current insurance industry-driven Government’s drive towards averting claims being pursued in the first instance, is to force Claimants to pay a proportion of costs from their recovered damages, which, frankly, are far too low in this country in any event. Any proposal for a notional 10% increase would have no real impact and is simply an attempt to prevent access to justice.

It seems, therefore, that the only likely benefits to arise from the Government’s ambitions this week in this field, will not be enjoyed by small or medium sized businesses, just the large ones with the biggest voices. The Insurance Industry.

Philip Holt
Stone Rowe Brewer LLP