THOMPSONS SOLICITORS’ RESPONSE - July 2009

About Thompsons

Thompsons Solicitors is the UK's largest and most experienced trade union and personal injury law firm. It has a network of offices across the UK, including the separate legal jurisdictions of Scotland and Northern Ireland.

Thompsons only acts for trade union members and the victims of injury, never for employers or insurance companies. At any one time, the firm will be running 70,000 personal injury claims, including road traffic accidents (RTA) in the UK and abroad.

The firm participates regularly in government consultations on legislative issues.

Our position

Thompsons considers that the proposals by the Department for Transport to define “significant personal injury” according to the length of time the injured person stays in hospital will have serious and dangerous consequences for the right of seriously injured people to receive compensation.

Entitlement to property damage should not be dependant on whether a “significant personal injury” has been suffered. Why complicate the straightforward issue of property damage with definitions of significant personal injury?

The DfT’s purpose in trying to link the two events may be to try to prevent fraud in motor property damage claims, but to do so by prescribing an unfair and unrealistic formula on injury victims could have far-reaching implications for personal injury claimants.

The proposal is dressed as an extension of compensation. In practice it will further limit entitlement to compensation for property damage to those who have been hospitalised for more than six days.

We believe that the Department is following, perhaps inadvertently, an insurance industry driven agenda to restrict claims for property damage in order to reduce costs and redefine the law in relation to significant and serious injury.

If the definition that the DfT is attempting to use were to be adopted or relied on by courts in personal injury claims, many seriously injured people could lose the right to damages.

As it is unlikely that this is the department’s intention, we urge it to drop these proposals.

In summary the proposals:

  • will seriously limit the right of people with significant injuries to claim compensation
  • reflect the insurance industry agenda to restrict entitlement to damages for the innocent injured
  • are dangerously misguided in linking the significance of an injury wit a stay in hospital
  • complicate unnecessarily the straightforward issue of compensation for motor property damage

Response to questions

1. The Department’s aim is to balance the need to compensate in genuine cases with the need to prevent fraud and that compensation for property damage should be appropriately and properly targeted.

Are there any general considerations which you feel the department has not taken into account. If so what ways should they be taken into account?

The insurance industry is running a powerful and effective campaign on the cost of personal injury and other claims. Insurers have, in parallel to the attack on the right of injured people to be legally represented, been raising the spectre of fraudulent claims.

The insurance industry trade press runs regular headlines suggesting that there has been a significant increase in fraudulent claims of all types.

“Research shows insurance fraud on the up as credit crunch bites”
(Post Magazine 15 July 2008)

“Research finds motor fraud jumped 7.2% in two months”
(Post Magazine 14 August 2008)

“Fraud trends returning”
(Post Magazine 23 October 2008)

“Fraud surge linked to rise in ‘desperation’ claims”
(Post Magazine 13 November 2008)

These are easy headlines. In none of these articles is evidence provided by the insurance industry of an increase in fraudulent claims, or that fraudulent claims are increasing costs or damaging the industry. Indeed there are as many headlines about the success of insurers in rejecting fraudulent claims (as they should), which indicate that the industry is confident about its ability to manage such claims.

This stoking of the fraudulent claims issue appears to be part of an insurance agenda to turn society against the principle that if someone is injured through no fault of their own, the negligent party – the polluter – should pay. The industry wants people who claim compensation for personal injury to be portrayed as dishonest or as whingers.

Having whipped up the myth of the compensation culture, the insurance industry is building on the distrust of claimants that it has encouraged (fuelled also by current economic conditions) by exaggerating the issue of fraudulent claims.

No type of claim – from motor property damage to employers’ liability – has been left out of this PR campaign. The DfT should consider the insurance industry campaign carefully before being driven by an anti-fraud agenda to link the right to claim for motor property damage with a definition of significant injury that bears little relation to how such injuries are defined in law and which may seriously undermine access to justice for injured people should the definition gain wider authority.

Defining significant personal injury by linking it to a continuous stay in hospital of six days or more on the basis that these personal injuries are of average or more than average severity is a fundamental misunderstanding of the legal definition of significant personal injury.

In law, any injury that is not insignificant is significant.

 

2. The Department intends to link “significant personal injury” to evidence that a stay in hospital has occurred, on the basis that those requiring hospitalisation are likely to be the most seriously injured.

Do you agree? If not then what alternatives which meet the Department’s criteria would you suggest?

We do not agree. As said, the DfT misunderstands the law on the legal definition of significant. An injury is significant because it is not insignificant.

The proposals fundamentally fail to understand the nature of serious injuries. The department relies on page 8 of the consultation paper on NHS hospital admissions statistics. These are simplistic. While they show what types of injuries will generally require hospitalisation and for what period, the type of injuries listed are the physically obvious, the more easily detectable and diagnosed.

Relying on these statistics also overlooks the obvious issue of NHS economics. Two people with an identical injury may experience very different types of treatment and care according to where they live. Factors such as bed availability, budgets, the view of the treating consultant, nursing staff availability and the time of year must be taken into consideration.

If the hospital is about to have its “targets” measured it may discharge a number of in patients who are reaching the end of the hospital care they require in order to increase the number of treatments it can achieve within the assessment period.

It is quite wrong to assume that all significant or serious injuries will be immediately detectable (or even detectable within 48 hours) and treatable in hospital or that hospital treatment will be continuous for six days or more and will always start within a given period.

Many Thompsons’ clients have received little or no medical treatment in the days or weeks post accident but went on to suffer considerably.

We urge the DfT to consult directly with the organisations that support those with brain and spinal injuries – Headway and the Spinal Injuries Association. Assumptions and conclusions about brain and spinal injuries cannot be made on the basis of NHS hospital admissions statistics.

Neither organisation appears on the list of consultees and Headway has confirmed to us that it was not informed by the DfT of this consultation.

Brain injuries

There is a developing field of neurology concerned with the difficulties of identifying mild to moderate brain injuries which often only show significant symptoms quite a while after the accident – when friends and family have time to realise the injured person “isn’t the same”.

Headway has produced new A&E discharge advice for adults who have suffered a minor head injury. The organisation says that discharge advice is often not provided by hospitals.

The advice includes that in most cases, symptoms such as loss of balance, deafness, blurred vision, headaches, vomiting and drowsiness will resolve in a couple of weeks. But sometimes they do not. The advice then is to see a GP and to seek a referral to a specialist neurologist.

Headway’s advice includes:

DO make sure you stay within reach of a telephone and medical help in the next few days
DO have plenty of rest and avoid stressful situations
DO show this factsheet to a friend or family member who can keep an eye on your condition
DO take painkillers such as paracetamol for headaches
DON’T stay at home alone for 48 hours after leaving hospital
DON’T drink alcohol until you feel better
DON’T take aspirin or sleeping tablets without consulting a doctor
DON’T return to work until you feel ready
DON’T play any contact sport for at least three weeks without consulting your doctor
DON’T return to driving until you feel you have recovered. If in doubt consult your doctor.

This advice is a realistic reflection of the nature of brain injuries. Is the DfT seriously suggesting that an injury that requires the above courses of action, including having plenty of rest, taking time off work and not driving, is not significant simply because the victim was discharged from A&E after a few hours?

Neck and back injuries

Whiplash, the most common injury suffered by RTA victims is a significant injury. It may also be severe enough to result in permanent disability. But no hospital is going to admit someone with a whiplash injury, and certainly not for up to six days.

Neck and back injuries are often not acted upon by the victim for several days or even weeks. Inevitably they hope the pain will go in time without treatment. Indeed they may initially be admitted to A&E only to be told that there is nothing that can be done and that they should see their GP if their condition does not improve.

But these sort of injuries often get progressively worse.

GPs are notoriously conservative in their treatment of such injuries. They will recommend painkillers and may suggest the patient sees a chiropractor or physiotherapist. The patient may well get such treatment privately rather than wait for an NHS appointment.

Thompsons acted for a client who was cut out of her car after a crash and taken to hospital. She was discharged by A&E and she tried to return to work. But her condition got progressively worse and she was forced to give up work as a result.

Under the consultation proposals, this would not qualify as a significant personal injury.

We acted for a woman who had a fall and injured her neck. She went to A&E and was treated and released the same day. A week later she suffered a complication that rendered her permanently and totally paralysed from the chest down.

While this case eventually became a clinical negligence claim, this woman could face an argument that she didn’t have a serious or significant injury because she was not hospitalised, should the DfT’s proposals be adopted (if her injury had been sustained in an RTA or if the DfT’s definition were to gain wider use). She was in A&E for less than six hours, somewhat less than the six days proposed in your next question.

Days spent in hospital and time by which treatment should be sought are not appropriate measures of significant injuries.

Each case will turn on its own facts. It is not possible to proscribe what is a significant injury, other than in law it is not an insignificant injury.

At the very least the department should accept other types of treatment sought such as consultations with GPs and specialists such as chiropractors.

 

3. The Department intends to define “significant personal injury” to a stay in hospital and that such stay would be 6 days or more.

Do you agree that this is the appropriate number of days? If not then what do you consider to be appropriate and why?

No, for the reasons given above and because even where an injury does require hospitalisation, the amount of time it will take for an injury to respond to treatment cannot be prescribed.

A badly broken leg, the long-term effects of which may be significant, will rarely require hospitalisation for six days or more. It is likely however that it will require months of treatment, sometimes further operations and rehabilitation treatment such as physiotherapy.

We acted for a man who suffered a hernia at work while unloading pallets from a lorry. He felt a sharp pain but did not seek medical advice until he noticed a lump in his groin a few days later while having a bath. His GP diagnosed the hernia and he was referred to hospital for an operation.

There was the inevitable wait for a date for the operation. When it took place the man spent fewer than six days in hospital.

He was off work for several weeks after the operation. But he failed to recover well enough t be able to return to a job that required the ability to lift. Many hernia patients spend no more than a couple of days in hospital but may never do a physically demanding job, or physically demanding activities, again.

 

4. The Department proposes that the applicable length of treatment should be continuous.

Are there any circumstances where you believe there should be more flexibility? If so what would they be and what would you propose as an alternative in these circumstances?

We do not agree with this proposal for all the reasons given above. Many significant and serious injuries require ongoing but not continuous treatment. The injured person may have spells in hospital or in other types of treatment centre. They may require rehabilitation treatment over a period of time that is not continuous before being able to try to return to work or to resume day to day activities.

 

5. The Department intends that the definition for “significant personal injury” will be six days or more continuous treatment in hospital and that the treatment should occur within 48 hours following the accident.

Are there circumstances where you consider greater flexibility is required between the time of the accident and that of the continuous stay in hospital?

If so what are these circumstances and how would you propose to specify greater flexibility to accommodate these circumstances in the most appropriate way?

We do not agree with these proposals for all the reasons given above. We do not agree that the issues with the proposals can be overcome simply by specifying greater flexibility as this is still too prescriptive an approach to injuries the circumstances and outcomes of which will always turn on their own facts.

The DfT should drop these proposals. Claimants are currently entitled to claim property damage (after the first £300 excess). This accepts that claimants have to take some level of "hit" if the property damage results in loss below £300. It also recognises that those whose property has been significantly damaged should be compensated for the damage and consequential loss.

The DfT is complicating the issue unnecessarily by trying to link property damage to “significant personal injury”. Our experience of dealing with injured claimants is that the link is often not there. What is the benefit of changing this other than to further limit entitlement to those who have not been hospitalised, or hospitalised for six days or more?

The significance of any injury should be determined by symptoms, medical reports and outcome and not by some ill-conceived idea of length of hospitalisation.