Written evidence from Rowley Dickinson Solicitors

 

 

 

WRITTEN SUBMISSION FROM ROWLEY DICKINSON SOLICITORS

 

  1. We are a small firm of Solicitors based in Manchester. The majority of our work involves acting for Claimants in personal injury claims.

 

  1. We receive instructions from a Trade Union to represent Members who have suffered accidents at work and outside work.

 

  1. We do not, and have never had, any dealings with Claims Management Companies.

 

  1. We receive instructions in approximately 700 personal injury claims a year (roughly 100 RTA claims and 600 Employer’s Liability and Public Liability claims). 

 

 

 

SUMMARY

 

  1. The reforms are directed at a problem which is overstated.

 

  1. The reforms will do little to end fraudulent claims.

 

  1. The proposed reforms penalise honest victims and provide a windfall to insurers.

 

  1. The Government should:

 

 

 

 

 

 

 

DEFINITION OF WHIPLASH AND PREVALENCE OF RTA RELATED WHIPLASH CLAIMS

 

  1. The definition of whiplash needs greater clarity. 

 

  1. Whiplash should be restricted to soft tissue injuries to the neck and/or upper back caused by deceleration of a motor vehicle arising from a collision.  The definition should not include cases involving psychological injuries.

 

  1. We do not agree that the definition of minor road traffic accident soft tissue injury claims should include cases where the duration of injury is up to 6 months.  In our experience such a classification will encompass injuries which would not normally be accepted as minor in any sense of the word.  In our opinion the maximum recovery period for a minor injury should be 3 months and this would be consistent with the Judicial College Guidelines.  

 

  1. We do not agree that there is a prevalence of, or an increase in, RTA related whiplash claims.

 

  1. In our experience we have not seen a rise in instructions for this type of injury claim. 

 

  1. The MOJ response to the consultation accepts that the number of such claims has remained static over the last 3 years.  (Paragraph 31 of Part 1 of the Government Response). 

 

 

DO FRAUDULENT WHIPLASH CLAIMS REPRESENT A SIGNIFICANT PROBLEM? 

 

  1. We agree that fraudulent and exaggerated claims cannot be allowed to succeed.

 

  1. However, we believe that the problem has been vastly overstated by the insurers. 

 

  1. In our experience, we do not see that there is evidence of a significant problem with fraudulent or exaggerated claims. 

 

  1. We have never been involved in a RTA whiplash claim where our client has been found to have pursued a fraudulent claim. 

 

  1. According to the Association of British Insurers’ own figures for 2015, fraudulent claims constituted 0.2% by volume or 1% by value of motor accident claims. 

 

  1. We submit that caution should be exercised when considering submissions in relation to fraudulent claims from the Association of British Insurers.  We understand that the ABI’s definition of a fraudulent claim includes both cases of proven fraud as well as suspected fraud.  Claims which are withdrawn; claims where the Claimant ceases communication with an insurer; and claims where the Claimant fails to submit documentation are treated as cases of fraud. 

 

  1. The MOJ’s proposed reforms are misconceived, disproportionate and are unlikely to prevent fraudulent claims.

 

  1. The proposed reforms penalise honest victims and provide a windfall to insurers.

 

  1. We have no faith in the assurances given by Insurers that savings will be passed on to consumers.  Clearly there is no mechanism to ensure that savings are passed on in the first year following the proposed reforms let alone in subsequent years. 

 

  1. The proposed reforms are likely to result in more claims being dealt with by a poorly regulated Claims Management industry. 

 

  1. We believe that the real issues are the involvement of Claims Management Companies; cold-calling; and the failure to control claims referrals. 

 

 

THE INTRODUCTION OF A TARIFF TO REGULATE DAMAGES FOR WHIPLASH CLAIMS AND BANNING SETTLEMENTS WITHOUT MEDICAL EVIDENCE

 

  1. We do not believe that the proposed tariff will meet the Government’s objectives.

 

  1. We do not believe that the tariff will reduce the number of claims; it will simply create an inequitable system of compensation where one type of injury receives disproportionately lower damages than another.  The proposed figures are indefensible. 

 

  1. The proposed ban on settlements without medical evidence (in whiplash claims) represents the only measure in the proposed reforms which could have an impact on fraudulent claims.  The fact that the insurers have (to date) been opposed to a ban on settlement without medical evidence runs entirely counter to the insurers’ claims of a fraudulent claims culture. 

 

 

THE IMPACT OF RAISING THE SMALL CLAIMS LIMIT TO £5000.00 FOR RTA CLAIMS

 

  1. It should be noted that the MOJ proposal is that the Small Claims limit be raised to £5000.00 for all road traffic personal injury claims. 

 

  1. The impact of such an increase will be to deny victims proper access to justice. 

 

  1. RTA victims will be faced with inequitable tariff based damages.

 

  1. Claimants will lose a significant proportion of their damages paying the cost of pursuing claims with representation only available under Conditional Fee Agreements / Damages Based Agreements. 

 

  1. Claimants will have difficulty finding representation in disputed claims and an increasing number of people will be driven into the hands of poorly regulated Claims Management Companies and McKenzie Friends.  Some victims will try and represent themselves and they will be faced with an inequality of bargaining power when dealing with well-funded insurers. 

 

 

THE IMPACT OF RAISING THE SMALL CLAIMS LIMIT TO £2000.00 FOR EMPLOYER’S LIABILITY AND PUBLIC LIABILITY PERSONAL INJURY CLAIMS

 

  1. In our experience employer’s liability claims and public liability claims frequently involve issues of complexity which make it difficult if not impossible for individuals to pursue a claim without proper legal representation. 

 

  1. Some of the Claimants that we currently represent may still be able to obtain advice and assistance through their Trade Union but the vast majority of individuals who are victims of accidents at work or other accident claims will be left with a choice of acting as a litigant in person; paying for legal representation; or trying to obtain legal representation under a Damages Based Contingency Fee Arrangement.

 

  1. In our experience, employer’s liability claims, where the level of damages for pain and suffering is likely to fall below £2000.00, are no less complex than cases where the damages are greater.  In many cases we anticipate that individuals will not be able to obtain representation under contingency fee arrangements because Solicitors will be unable to take on these cases because the work involved will simply be unprofitable. 

 

  1. Paying for representation will not be an option because the work involved in such cases will mean that the victim’s unrecoverable legal costs will extinguish all or most of the damages awarded. 

 

  1. The insurance industry may claim that representation will be available to accident victims through the use of Before the Event (BTE) Legal Insurance Policies.  Such policies may currently be available as an add-on to motor insurance but most do not cover Employer’s Liability and Public Liability claims.  Where BTE Insurance is currently available the price of the premium is relatively modest because it costs the insurers little to provide the cover.  Support is only offered to accident victims with claims with clear prospects of success.  The cases are transferred to Solicitors on the insurers’ panel, who receive payment from the costs recovered on successful claims.  It would be naïve to assume that the same cover would be available for the same premiums when the claims have to be brought in the Small Claims Track with no legal costs recoverable.

 

  1. For these reasons we believe that the effect of the proposed increases in the Small Claims limit will result in innocent accident victims being left without proper representation.

 

  1. In the Appendix below we have highlighted examples of very typical employer’s liability cases that we have dealt with recently demonstrating why Claimants would be denied access to justice if the Small Claims limit is increased to £2000.00.

 

  1. We do not believe that these problems can be overcome by the creation of an On-Line Court.  The Interim Report of Lord Justice Briggs highlights the scale of the task necessary to create an On-Line Court providing genuine access to justice, and clearly there is no prospect of such a facility being available in time to meet the proposed changes to the Small Claims Limit for Personal Injury Claims. 

 

 

ROLE OF CLAIMS MANAGEMENT COMPANIES

 

  1. The target of these reforms should have been proper regulation of Claims Management Companies and an end to cold-calling. 

 

  1. The Government has demonstrated that such regulation is possible having announced in the Treasury Autumn 2016 Statement an intention to put an end to Pension cold calling.  Similar proposals could be implemented in respect of Injury Claims Cold Calling. 

 

30 March 2017

 

 

 

APPENDIX

 

 

 

 

JB V WMS

 

Damages

 

£2,000.00 (including special damages)

 

Facts 

 

The Claimant was employed by WMS in their bakery department.  She sustained a soft tissue injury to her ankle and loss of earnings when she slipped on the floor of the bakery.  The Claimant alleged that the safety shoes provided to her by WMS were inadequate and that there was a particular problem with the safety shoes supplied when used in the bakeries because of a build up of flour and dough on the soles of the shoes. 

 

With relatively modest injuries the case had a full value of £2,000.00.

 

Issues/Complexity

 

WMS denied liability.  WMS claimed that the safety shoes supplied were fit for purpose.  WMS denied any previous problems with the shoes. 

 

Following the issue of proceedings and after extensive work on our part we were able to uncover witnesses who had made previous complaints in other stores and produce minutes from meetings with WMS where Safety Reps had raised grievances about a problem with the shoes at a number of different stores.

 

This case is about work equipment and its suitability (Regulation 4 Provision and Use of Work Equipment Regulations 1998).  Not only does the Claimant have to prove that the equipment wasn’t suitable but since section 69 Enterprise and Regulatory Reform Act 2013, the Claimant also had to show that the employer has been negligent.

 

The Claimant would not have been able to obtain the evidence to establish a negligent breach of the Work Equipment Regulation without representation.

 

If the only funding arrangement available to the Claimant was a Contingency Fee Agreement, it is unlikely that a solicitor would have taken on this case because the work involved would have disproportionate to the fee recoverable, (the time spent on this matter running this case over a period of 2 years was in the region of 20 hours).

 

 

PB V MC

 

Damages

 

£1,500.00

 

Facts

 

The Claimant worked as a contract cleaner.  He was operating a motorised ride-on cleaning machine when the accelerator jammed, causing him to crash. 

 

His employers denied liability.  It was accepted that the truck had developed a fault which had caused the accident, but the employers relied upon records showing that the equipment had been regularly serviced.

 

Issues/Complexity

 

The relevant statutory duty is the obligation to provide and maintain suitable work equipment under Regulations 4 and 5 of the Provision and Use of Work Equipment Regulations 1998. 

 

Since S69 of the Enterprise and Regulatory Reform Act 2013 breach of the Regulations no longer imposes strict liability.  The Claimant must prove negligence. 

 

We were able to prove negligence in this case by obtaining disclosure of previous repair records and witness evidence from a third party contractor who had repaired the work equipment to show that the employers contrary to their Defence, were operating work equipment which was subject to persistent fault and breakdown and was not subject to adequate maintenance.

 

This case was defended by the employer up to the stage of disclosure of documents and exchange of witness evidence. 


Without representation the Claimant would not have been able to obtain the evidence to demonstrate that the employers had been negligent in their failure to comply with their statutory duty. 

 

If the only funding arrangement available to the Claimant was a Contingency Fee Agreement, it is unlikely that a solicitor would have taken on this case because the work involved would have disproportionate to the fee recoverable, (the time spent on this matter running this case over a period of 18 months was in the region of 15 hours).

 

 

DS V GF

 

Damages

 

£1,000.00

 

Facts

 

The Claimant worked at a retail Distribution Centre.  The Claimant was unloading eggs in large metal units using an electric pallet truck.  The eggs had been loaded in an unsafe manner by the supplier and when the Claimant tried to move them the metal units collapsed and struck him on the head causing injury.

 

Issues/Complexity

 

The Defendant denied liability and tried to blame the haulier (who had no involvement in loading the trailer).  The Defendant denied any liability for the accident and threatened to have the case struck out as an abuse of process.  Subsequently the Defendant tried to have the case allocated to the small claims track by arguing that the Claimant had no reasonable prospects of recovering damages in excess of £1,000.00.

 

Following a preliminary hearing the case was allocated to the fast track (a District Judge deciding that the Claimant did have reasonable prospects of recovering damages in excess of £1,000.00).

 

The Defendant continued to contest liability and agreed to settle the claim on payment of damages of £1,000.00.

 

Without representation the Claimant would not have been able to obtain the evidence to demonstrate that the employers had been negligent in their failure to comply with their statutory duty. 

 

If the only funding arrangement available to the Claimant was a Contingency Fee Agreement, it is unlikely that a solicitor would have taken on this case because the work involved would have disproportionate to the fee recoverable, (the time spent on this matter running this case over a period of 2 years was in the region of 15 hours).

 

 

VN V DCL & CL

 

Damages

 

£2,000.00 (including special damages of £400.00)

 

Facts

 

The Claimant worked at a retail Distribution Centre.  The Claimant was injured when unloading a trailer operated by the First Defendant and carrying produce from the Second Defendant – a heavy metal bar fell from the side of the trailer whilst the Claimant was unloading and struck her on the shoulder. 

 

Each Defendant sought to blame the other and both Defendants claimed the accident was the Claimant’s fault.

 

Issues/Complexity

 

The tactics employed by both Defendants blaming each other (and the Claimant) for this accident would have caused insurmountable difficulties for a Litigant in Person.  For example DCL attempted to assert that it could not be liable by virtue of the terms of its agreement with CL.  An unrepresented Litigant would not have known that a party cannot rely on a contractual term to exclude liability for personal injury.

 

Both Defendants continued to blame each other and the Claimant after proceedings were commenced and up to the point where witness evidence needed to be served.  Only at that stage was an offer of settlement put forward to the Claimant (on behalf of both Defendants)

 

 

RFG V TSL

 

Damages

 

£1,300.00

 

 

Facts

 

RFG was employed by TSL; slipped on 1st January, 2016 whilst crossing a footbridge leading to the staff entrance due to an accumulation of black ice. RFG sustained a minor injury to his knee and ankle which from the outset we valued at £1,500.00.

 

 

Issue/Complexity

 

We submitted a claim against TSL and they repudiated liability on the basis that footbridge was not part of their demise and therefore not their responsibility to grit.

 

We redirected the claim against the council. The council indicated that they had a Lease with TSL and that TSL were responsible for the maintenance of the footbridge. We sent the claim back to TSL who then admitted liability settled the claim.

 

P V TCG

 

General Damages - £1900.00

 

Facts – The Claimant suffered soft tissue injuries to her neck and shoulder as a result of a lifting accident at work. The Claimant alleged that she was on a pre-existing restricted work programme, i.e. on light duties, which should have prevented her from doing heavy lifting. This was denied by her employers.

 

Issues / Complexity – Liability denied. As stated above, it was denied that she was on light duties and in any event, she was running the shift at the time so could have delegated these activities to others. This was denied. Causation also an issue. Witness evidence was required, including from a Manager who had agreed the adjusted work programme, who has since departed from the Defendant’s employment. The case settled after issuing Proceedings.

 

Given her pre-existing medical issues, this was always likely to be a low value claim. Tracing the witness was consuming, and potentially disproportionate for a Small Claims Track case.

 

 

S V AB

 

General Damages - £1500.00

 

Facts – Claimant struck by an item falling from an overhead conveyor.  Breach of duty was admitted but quantum and causation remained in dispute. 

 

Issues / Complexity The Defendant did not believe the Claimant and questioned his credibility.  The Claimant, a non-English speaker, found it difficult to communicate.  The Civil Procedure Rules require that witness statement is either translated, or explained face to face and confirmed by an Affidavit the Solicitor with conduct of the case.  This is a time consuming and expensive process.  An interpreter would have been required at Trial which would have been disproportionately expensive given the modest value of the claim.  Non-English speakers in cases like this face a real inequality, in particular where the facts are in dispute or credibility is being challenged and would struggle to find legal representation, given the costs involved.  The case settled one week before Trial.