APIL blog

So, you’ve had an accident. You’ve been injured. You can’t work for a while, and you are self employed so you can’t earn any money. It’s a difficult time. The accident was at the hands of another and it wasn’t your fault – surely someone can help you?
 
Under the Government’s latest proposals, you would be expected to help yourself. At present you could talk to a lawyer who would advise you as to what you should expect, deal with the case on your behalf to secure compensation, and potentially get you a quick interim payment to ease your financial loss. Moving forward, and under the latest proposals, if your case is worth less than £5,000 (which the majority of cases are) you would be expected to build your case yourself (despite your ill health) and take it through the small claims court,where you may not be able to afford legal representation. Court fees alone can cost up to £500 at a time when you may be under financial pressure.
 
That may be enough to put you off already. But picture it now: you, on your own in court for the first time, up against an experienced insurance company representative. It’s David and Goliath. Few will be brave enough to face it.
 
As a consequence, many people who have suffered genuine injuries will simply be put off pursuing their cases. Genuine claims will just go away. Our last survey showed that 64 per cent of people would be unlikely to pursue their case without a solicitor. So, to be more precise, 68 per cent of real, justified claims would go away.
 
Insurers are commercial, savvy beasts. Everybody who has ever had to claim for a stolen car or a damaged vehicle will know how closely they guard their money and how tricky it can be to get the appropriate settlement. They have a duty to deliver profit for their shareholders. This creates a conflict when they start to deal directly with injured people to settle their claims. More people will be forced into dealing directly with insurers as an alternative to the small claims court. This is bound to lead to under settlement of damages – a Financial Services Authority report has shown that on average an injured person received a settlement 275 per cent higher using a lawyer compared to dealing directly with an insurance company.
 
The next claim could be yours. Don’t be swayed by this argument that we will all benefit from lower premiums. I don’t want to benefit if the injured person suffers unduly. I don’t want to injure someone in my vehicle for them not to be compensated and looked after. And will premiums truthfully come down? Legal costs for 75 per cent of personal injury claims were slashed by more than a third two years ago. And premiums have not fallen yet.

Many of us work hard with the hope of enjoying a long, healthy retirement. However, for the many unfortunate people who were exposed to asbestos as part of their job that remains a distant dream.

We are lucky in this country to live in a society which respects the rights of individuals and looks after their needs. Since 1972 it has been compulsory for employers to take out employer’s liability insurance so that they are able to properly compensate you if you have an accident or become ill due to your employment. However, in reality getting money out of insurance companies is tough.

Employers have known about the damaging effects of asbestos for a long time. The Sunday Times ran a story in 1965 which highlighted the problems publicly for all to see, although it’s fair to say that the dangers of asbestos were becoming increasingly widely known even before the 1960s. However, not all employers heeded the warnings and changed their ways, and many continued to expose their staff on a daily basis. Whether you made brakes, worked in shipbuilding, or were involved in construction it made no difference – if asbestos fibres were present, you were at risk.

There are four main diseases resulting from exposure – pleural thickening, asbestosis, and the life threatening mesothelioma and lung cancer. All these diseases have long incubation periods with symptoms not showing for many years. If you worked for several employers doing similar jobs it can be hard to identify where the exposure may or may not have occurred. Employers come and go, and many of companies are no longer in existence. However, whilst employers may be more transient, insurance companies tend to stand the test of time. Your employer should have been insured and, even if the employer has gone out of business, his insurer should either still exist, or will have passed its responsibilities onto another insurer.

Some of these insurers escape their liabilities. They have collected the premiums but don’t pay out on the policies. Many records have been lost or destroyed, making it difficult to trace the insurer responsible. A tracing organisation has been set up to assist, but it is not foolproof as it will only help people with future claims, not people with historic cases which relate to policies taken out years ago. If you can’t identify the insurer, you cannot get compensation – unfortunately this is too often the case. Companies which are now defunct have to be temporarily resurrected before a claim can be pursued. Lawyers fight tooth and nail for these people whose lives have been ruined, but cases are extremely hard fought by insurers. It’s complicated.

We believe strongly that all sufferers of asbestos related diseases should receive the appropriate level of compensation. It should not be a lottery as to whether the insurer can be traced or not. These premiums have been paid. We call upon the Government to require the insurance industry to sort out its own mess and set up a fund for those sufferers where the insurer cannot be traced. This is serious. No mesothelioma sufferer should have to die in silence, without the compensation he needs to provide some comfort in the last days of his life, or the means to provide for his family after his death, because the insurance industry shirks its responsibilities. What is insurance for if not to compensate those diseased and dying as a result of a hard day’s work?

As the Mail on Sunday starts its campaign to eradicate whiplash claims, it is worth taking a moment to reflect on what they say. Lawyers are often referred to as ‘ambulance chasers’, and yet I have never seen a lawyer hanging about in a lay by waiting for the sirens. The only ambulance I have ever chased had my injured friend inside on her way to Accident and Emergency. However, creating impressions such as this in the media undoubtedly has the effect of undermining and ridiculing the public protection role of the lawyer. Lawyers have always stood up for the little guys and got them what is rightly theirs. For those injured they are a godsend.

If you read the papers, you would quickly presume that virtually every claim is fraudulent. Some will be as there are always people who will try to exploit a situation to their own advantage. But for every fraudulent claim there are probably 99 genuine claims. We would always encourage insurance companies to fight back claims they consider to be fraudulent – they have information that lawyers don’t currently have at their disposal, such as whether the claimant is a regular claimer, which can be a good indication of potential fraud. At the moment, insurance companies would rather just pay claims than fight them, and then complain that they’ve had to pay them. If anything is likely to encourage a growth in fraudulent personal injury claims this would be it. Insurance companies often don’t even want the sufferer to be seen by a doctor, despite it being an important part of the process designed to separate the genuine claimants from fraudsters. Insurance companies need to behave responsibly here. Doctors also have an important role to play. The doctor quoted in the Mail on Sunday didn’t agree with the prognosis he was asked to give, and so refused. This is just what should happen – medics are the experts who can advise lawyers whether victims are genuinely injured or not. He spoke about the tests and cross checks that he could apply to check that whiplash is genuine – doctors have the means and the ability to give a sensible prognosis and should not feel pressurised into saying just what people want, they should say what is right. The onus is on everyone to be honest here: lawyers, insurers, doctors and last, but not least, the victims. Lawyers who encourage fraudulent claims, or persuade a victim to exaggerate, will have their careers abruptly ended. We should all fight fraud.

Last week it was reported that one insurer, Admiral, makes £16m from referring accident victims details to lawyers. Clearly, the more details they refer, the more money they make. Many insurers act this way, in effect drumming up business whilst still complaining vehemently that too many claims are being bought. The Government hopes to cut this by banning referral fees, thus removing the financial incentive for insurance companies to pass on details of accident victims. However, there is a justified concern that a ban may drive premiums up even further as insurance companies lose a valuable source of income. £16m in one company alone is a big hole to fill.

Will there be fewer claims if a referral fee ban is implemented? Probably not on a major scale. We have a society in which people are now aware of their right to claim if they are injured. So how to cut premiums? An obvious way would be to cut spend on meerkats and opera singers. In 2010, 20 major insurers spent a mindblowing £184million on advertising. And we are all paying for it.

Older blog entries