The 6th January 2017 heralded the end of the Ministry of Justice’s consultation period for the paper “Reforming the Soft Tissue Injury (‘Whiplash’) Claims Process”. The consultation’s stated aim is to tackle a perceived compensation culture and reduce fraudulent whiplash claims arising from road traffic accidents. As well as a number of reforms aimed specifically at reducing damages in whiplash claims, the paper proposed increasing the small claims limit for personal injury claims from £1,000 to £5,000.
Under the present system, where an injury claim is worth £1,000 or less, the injured party’s legal costs are not recoverable from the paying party regardless of success. It is now proposed that this limit be increased five-fold.
The Government estimates that the reforms will save motorists an average of £40 on an annual motor policy, although there are no proposals to force insurers to pass on these savings to the consumer.
At first glance, this would appear to be good news for workers: cheaper motor insurance and a reduction in fraudulent injury claims. The reality, however, is very different. Despite the title of the reform paper referring specifically to “whiplash” claims, the reforms will in fact impact across all injury claims, including claims for workers who sustain injury or disease as a result of a negligent public authority, private company or employer.
The reforms pre-suppose that claims of modest value are not complex and can be dealt with by a litigant in person. However the reality is that there is often little relationship between case complexity and claim value. This is abundantly clear in the case of claims of workers injured or made ill in the workplace.
Employer’s liability insurance is generally mandatory for all employers. If a claim is made by a worker against their employer it is therefore usually pursued against an insurance company. Workers who pursue their claims without legal representation will find themselves in a David v Goliath situation.
For a successful workplace claim, employees are required to evidence the fact of an accident; prove the mechanics of that accident; prove that the accident arose from a breach of applicable workplace legislation and/or an employer’s negligence; show that the incident was not caused or contributed to by the employee’s own actions; prove the injuries and expenses resulting from the incident; display and calculate the full extent of those injuries and losses; and negotiate to achieve a fair settlement .
Insurance companies have deep pockets and so can afford to use a solicitor where necessary, even against a worker acting alone. A worker who brings their own claim will be hugely disadvantaged in terms of technical knowledge and understanding of procedure, inevitably affecting the chances of a successful outcome regardless of the strengths of the case.
Documentary evidence features heavily in workplace claims; accident reports, training records, risk assessments, safe systems of work, accident investigations, RIDDOR reports, etc. Knowing which documents to seek and actually obtaining them can pose considerable challenges. As such, interim Court Applications to secure document disclosure are commonplace in accident at work claims.
There are also financial deterrents to bringing a claim. Workers will need to pay for medical reports and court fees, potentially involving an up-front outlay of hundreds or even thousands of pounds.
The Government’s reforms have been premised on a perceived “compensation culture”. However, evidence suggests this is no more than a perception. A recent TUC report demonstrated that only 1 in 7 workers suffering injury or illness through work achieved any compensation at all.
Likewise, the overall number of claims has fallen dramatically over the past 15 years. According to statistics from the Compensation Recovery Unit (CRU), in the period since the earliest comparable figures were published (2002), the number of claims from workers against their employer have fallen from 183,342 to 103,401.
The majority of workplace accidents and illnesses attract awards of less than £5,000 and would therefore be impacted by the proposed reforms. These are not minor injuries. They can include a fractured elbow or wrist, a collapsed lung, broken or lost teeth, facial scarring, Post Traumatic Stress Disorder and even a partial amputation of a finger.
With the introduction of these reforms, the injured worker may be put in an impossible situation: bring no claim at all or bring a claim with legal representation knowing the cost of such will leave a limited award for themselves.
In a previous blog for Workers Memorial Day, I wrote “the erosion of workers’ legal right shows no sign of abating in the future”. This is again proving painfully accurate.
The reforms will not stop the thousands of needless injuries in the workplace every year, and those injured workers will now be denied access to justice and financial redress.
My concern is that there will be less incentive for employers to make sure that these injuries and illnesses do not happen. Undermining workers’ legal rights will encourage those rogue employers who flout health and safety law.
The implementation of these proposals would represent a huge victory for insurance companies over the worker. Some “shared society”.