What ‘justice’ means for personal injury claimants through the ages

An ‘impact assessment’ of the LASPO reforms and possible further reforms based on 3 cases each brought at different points in time….

A Personal Injury Claim – January 2013

In January 2013, John suffered a back injury when he was involved in an accident at work.  John had worked for the company for some time and was very experienced in his position.  Furthermore, he had received comprehensive health and safety training from his employer.  Despite the company implementing a generally safe system of work, his accident and injury were caused when a machine suddenly malfunctioned.

John reported the accident and was driven to hospital by a friend. X-rays were taken and no bony injury was found. He was given painkillers and told to rest. He returned to work the next week but, after only a few hours, his back pain was so severe that he had to return home.

John sought legal advice from a local personal injury solicitor who, after taking detailed instructions, agreed to take his case on on a no win no fee basis.

John’s employer and their insurer initially denied any liability for the accident, claiming that there was no evidence to show that the machine had been faulty or defective and that they otherwise ran a tight ship.

John’s solicitor had to issue court proceedings and, after some time, the company then disclosed documentation showing that the said machine had not been inspected or maintained for over 2 years prior to this accident. When combined with the nature of the injury that John had suffered, which was well documented in his medical records and an expert’s medical report, the company eventually admitted liability and a compensation settlement was subsequently agreed.

The settlement included compensation for loss of earnings, as John had been unable to work for the duration and so the income related benefits that he had been claiming were paid back to the DWP.

The settlement also included compensation for private physiotherapy treatment which aided John’s recovery.

In addition, the defendant covered the costs of vocational support to not only assist John with his treatment but help him in re-training so that he could find employment in a more sedentary job.  Within 12 months, John was back in employment after making a good recovery.

A Personal Injury Claim – July 2013

Jim worked for the same employer as John and suffered an identical injury in an identical accident but his accident occurred 6 months later in July 2013.

Jim sought legal advice.  He contacted his legal expenses insurer (through his home insurance policy) to see if they would cover the costs of a claim. The insurer said they would but only if he used their own solicitors 150 miles away. He reluctantly agreed but, after a few months, those solicitors rejected the claim because the employer had denied liability and the solicitors did not consider there to be sufficient prospects of succeeding with the case to take it any further.

Jim therefore rang around solicitor firms in his local town and found it difficult to find anyone willing to take his case on, especially when it had already been pursued and dropped by a previous firm.

Finally, Jim did find a solicitor prepared to represent him.  The company and their insurer still denied liability and so Jim’s solicitor had to issue court proceedings. In their defence, the company maintained their denial and pleaded that the claimant had been dishonest about the cause of his accident and/or had exaggerated the extent of his injury.

Upon disclosure, it became clear that the machine had not been inspected, maintained or repaired for over 2 years. At that same time, the defendant made an offer to Jim to settle his case.

Jim’s solicitor considered the offer to be low based on the medical evidence which confirmed that Jim had suffered a significant back injury which was ongoing and which continued to keep him out of work.  However, when Jim was made aware that there remained a risk that he could still receive nothing at all, he was reluctant to pursue the case further.  He was also most distressed by the prospect of being accused of dishonesty and exaggeration at trial and, when his solicitor explained to him that, in the event of a finding of fundamental dishonesty he could have his claim struck out and face cost sanctions, Jim simply wanted to bring an end to the matter and, after some further negotiations between Jim’s solicitor and the company’s insurer, a settlement was reached.

However, the settlement was indeed low based on the medical evidence. The loss of earnings recovered only covered Jim’s past loss of earnings and not his ongoing loss. Therefore, Jim had to carry on claiming income benefits and the DWP only recouped a proportion of the benefits paid out to him.

Also, Jim’s solicitor made a deduction from his compensation to pay for the legal expenses insurance policy and solicitor costs that the company’s insurer did not have to pay for.

Furthermore, his back pain did not resolve and the wait for NHS physiotherapy meant that the sporadic and limited treatment received made for a slow recovery.  As such, he was unable to return to work for 3 years and was dependent on welfare support throughout that time.

A Personal Injury Claim – January 2017?

Somewhat unbelievably, James worked for the same company as John and Jim and suffered an identical injury to both of them as a result of an identical accident (that blo0dy machine!).

There were no local solicitors in James’ local town providing personal injury services.

James’ legal expenses insurer (through his home insurance policy) refused to take the claim on as they considered the prospects of succeeding to be borderline (due to Enterprise & Regulatory Reform Act 2013) alongside the likelihood of quantum (compensation value) being less than £5,000 for what they considered to be a simple soft tissue back injury likely to resolve within 12 months.  Under the “Access to Just This Act 2016”, the small claims limit for personal injury claims had been increased to £5,000 and so no solicitor would be able to recover costs in the event of a successful claim worth less than £5,000.

James did eventually find one firm willing to ‘take a punt’ on his case but they would deduct 40% from his compensation if they succeeded.

The MedCo scheme (now extended to employer liability claims) resulted in an initial GP expert report stating that James had suffered a soft tissue back injury likely to resolve within 6 months of the accident. The value of the claim at that stage therefore appeared to be less than £5,000 (as James received sick pay for the first 6 months off work).

The company denied liability for the accident and James’ solicitors were not willing to pursue the matter to court. The issue fee in this case would be £1,000 (following further court fee increases) and his solicitors were not willing to underwrite that fee given the risk and they advised James that they would not be pursuing the matter any further as the limited costs that they would receive in the event of a successful outcome did not outweigh the level of work required to trial and the legal expenses insurer would not fund the disbursements to trial based on the evidence.

James received nothing.

Furthermore, his back pain did not resolve and the wait for NHS physiotherapy meant that the limited treatment received (following further NHS cuts) did nothing for his recovery.  As such, he was unable to return to work and repeatedly had to attend his GP for treatment and medication.

As an unemployed male with limited mobility and chronic back pain, Jim remained (increasingly) dependent on welfare support for the rest of his life, requiring much NHS treatment and social care.

ON THE OTHER HAND:

The company’s insurer saved themselves (and their shareholders) a payout of over £50,000 by not having to pay any compensation in James’s case. However, when compared to John’s case, the DWP paid say an extra £200,000 in benefits to James’ over his lifetime, the NHS incurred extra treatment costs of say £50,000 and Social Services spent say an extra £50,000 on care. What’s more, the company’s liability insurance premium increased year on year forever!  So how exactly are these reforms helping anyone other than the insurance companies and their shareholders?

___________

Reform – any proceeding which brings back a better order of things”

Unfortunately, it is those who define what is ‘better’ that get to determine the ‘order’.

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