Accidents do happen
Date: 10 February 2012
Authors: Patrick Allen
Issue: Vol 162, Issue 7500
Categories: Features, Personal injury
The stream of prejudice against those who bring personal injury claims has continued unabated over the last few months. The Lofstedt report on health and safety regulations was published in November 2011. Professor Lofstedt made many sensible suggestions such as exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others, simplifying the disclosure requirement for pre-action protocols and reviewing the requirement for strict liability in some regulations.
Crucially he said in his introduction: “I have concluded…there is no case for radically altering current health and safety legislation…There is a view across the board that the existing regulatory requirements are broadly right, and that regulation has a role to play in preventing injury and ill health in the workplace. Indeed, there is evidence to suggest that proportionate risk management can make good business sense.”
Government spin
However, that did not fit in with the government pro-conker spin and they were clearly reading a different report. “The coalition is determined to tackle the pervasive compensation culture that has deeply damaged the standing of ‘health and safety’ in the eyes of the public.”
The prime minister stated last month that he wants to “wage war against the excessive health and safety culture that has become an albatross around the neck of British businesses”. It seems that it is not the consequences of the banking collapse which is holding back the economy but British businesses that “every day battle against a tide of risk assessment forms and face the fear of being sued for massive sums”.
In fact, precisely the opposite is true in terms of the effects on the economy as you can find a few clicks away on the Health and Safety Executive’s website. In 2010–11, 26.4 million days were lost due to work-related illness and workplace injury. 1.2 million people were suffering from an illness which they believed was caused or made worse by their work. Workplace injuries and ill health (excluding cancer) cost society an estimated £14bn in 2009–10.
Downward trends
However, the good news is that all the trends over the last decade are downwards. There were 171 fatal injuries to workers last year, compared to nearly 300 in 1996–97. New cases of self reported work-related illness have fallen. This is accompanied by figures showing that the numbers of people making claims for compensation has been falling. Compensation Recovery Unit statistics show workplace injury cases registered with them falling from 98,478 in 2006–07 to 81,470 in 2010–11.
Clearly, efforts must be made to reduce workplace injury and illness for the sake of workers’ health and the economy and to ensure that the current trends continue. Enforcement of effective regulations plays a vital role. So do injury claims for breach of duty. Without the ability for workers to claim, there is no doubt that employers would pay less attention to complying with regulations.
But it is the unrelenting efforts of government ministers and the Association of British Insurers (ABI) stoking the myth of the compensation culture which is damaging the standing of health and safety in the eyes of the public and leading to measures making it more difficult for injured workers to claim compensation such as the Jackson reforms. This could easily lead to more work-related injury, not less. The best way to protect workers and the economy is to kill off the myth of health and safety compensation culture by waging war on those who stoke up the myth. A long period of silence from ministers and the ABI on the subject would do it.
Whiplash personal injury claims
Next it is the turn of those who suffer injury caused by whiplash to be demonized. The House of Commons Select Committee on Transport report of December 2011 wants the “bar raised” on the proof required before whiplash injury can be compensated: “Where someone can demonstrate that they have suffered an injury, including whiplash, as a result of a road traffic accident for which they were not fully liable they should be able to claim and receive compensation. However, in relation to whiplash, we are not convinced that a diagnosis unsupported by any further evidence of injury or personal inconvenience arising from the injury should be sufficient for a claim to be settled.”
It is not at all clear what they mean. Whiplash injury is not an invention. It typically happens when a driver or passenger in a stationary car is rammed from behind by another car where the driver was not paying attention. Taken unawares, their head snaps backwards and forwards. Symptoms then emerge in the hours and days that follow. These are headaches, nausea, stiffness and lack of movement. Most recover in a few weeks or months. For some, serious disability persists. There are 204 pages of case reports on whiplash in the current issue of Kemp, all telling the same story but with shorter and longer outcomes (Kemp & Kemp, Personal Injury Law, Practice and Procedure, September 2011). There are no vast payouts for smaller cases. Judicial Studies Board guidelines suggest damages of £875–£2,850 for minor whiplash where recovery is within a few weeks to a year.
Claims portal
The majority of minor whiplash cases are dealt with in the new portal where costs are fixed at £1,200. All claims have to be supported by a medical report which will almost certainly show a diagnosis supported by evidence of injury and personal inconvenience arising from the injury (which is what the Select Committee wants). If insurers think the evidence is rubbish and the claim is not genuine they can reject the case and test the evidence in court.
The Select Committee seems to be overreacting and falling into the skeptic trap which says that if you can’t see or measure an injury (preferably with a machine with dials) then it probably does not exist and the patient is feeble, a liar and a fraud. However, doctors, especially psychiatrists, spend their careers diagnosing and treating injury or illness which cannot be seen. They listen to and examine the patient and consider the circumstances. Their opinions are formed on the balance of probabilities and their knowledge and experience. These opinions will support treatment or form the basis of a medico-legal report for a claim. It is difficult to see why this should not be sufficient evidence for a court.
I do not know what the Select Committee has in mind for the bar raising. An extra and more expensive medical report from a second doctor? A lie detector report? Raising the burden to beyond all reasonable doubt? Deny recovery of damages where they are assessed at less than £5,000? This would be discrimination on a huge scale against a class of accident victims who would be treated differently from those with “real” injuries, such as a fracture. I cannot see how this can ever be justified but it shows how far the anti-claimant band wagon has been rolling. Hopefully sanity will return to PI litigation one day.
Patrick Allen is senior partner of Hodge Jones & Allen LLP and a former president of the Association of Personal Injury Lawyers. He is a member of the Law Society Civil Justice Committee. E-mail: PAllen@hja.net Website: www.hja.net
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