Thoughts on whiplash on the eve of the Expert Witness Institute conference

Tomorrow I will be attending the Expert Witness Institute (EWI) Annual Conference at Church House Conference Centre in the heart of Westminster. This year’s Conference is themed around the implementation of Lord Jackson’s reforms in April 2013. The reforms have long been in the offing, and it’s no exaggeration to bill them – as do the EWI event organisers – the ‘Big Bang’. Lord Faulks QC’s ‘view from the House of Lords’ of the reforms should be particularly interesting.

But if April 2013 is set to yield seismic changes to the civil litigation landscape, I hope that the same isn’t true when it comes to our treatment and sympathy for whiplash injuries. As I have noted before, an unruly bandwagon is being piloted by an alliance of insurers, government and certain newspapers to convince us that whiplash is an invented condition. If the bandwagon isn’t stopped, it will career into whiplash victims and ruin their ability to obtain redress.

I hope to raise this issue at the conference, especially when I join EWI director Nick Addyman, EWI fellow Dr Keith Rix and Brian Gardner FRCS in a ‘medical breakout’ session. We’ll be debating topics dear to our hearts; the prejudice against whiplash is certainly one of mine.

However, before reiterating some of my beliefs about whiplash, perhaps I should first make clear that there is common ground here. I and other claimant PI lawyers agree with insurers that there is an opportunity for fraud in the current system. So, too, do we agree that fraud contributes to the rising cost of motor insurance. We also welcome the government’s wider interest in the motor industry and the myriad of factors that could contribute to lowering the cost of motor insurance, including education, training and monitoring for new and young drivers. 

But the myth that whiplash is not a genuine injury has got to be scotched. Whiplash is real and there is a wealth of evidence that demonstrates its potentially debilitating impact and long-term consequences.  The government’s proposal to increase the small claims limit in personal injury cases from £1,000 to £5,000 cannot but have a devastating effect on whiplash victims. It should be remembered that this idea was consulted on at length and rejected by the Ministry of Justice on the grounds that it would stop genuine accident victims from receiving justice.

Moreover, reducing legal fees to an artificially low level – as is also mooted – may have the unintended consequence of lowering the quality and standard of representation in whiplash cases. It could also lead to legitimate claimants having to fight for compensation without legal representation, therefore eroding access to justice.

Finally, imposing an arbitrary accident speed (e.g. 15 miles per hour) below which a claim cannot be made has little medical foundation, as serious injuries can occur even in low speed collisions. In addition, satellite litigation and unnecessary costs may be generated by arguments over evidence of exact speeds. One can well imagine endless and costly debate over whether a claimant was driving at 15mph or at 14mph. Technology such as telematics could have a role in reducing fraud and bringing down the cost of motor insurance in the future, but it is not a panacea. These schemes are currently unproven and cannot be relied upon as an absolute measure when all circumstances and individuals are different.

So much for the laments. Do we, I hear you ask, have any solutions? We do. Take a look at the 10-point plan for eliminating fraud produced by the Association of Personal Injury Lawyers. Some of APIL’s ideas overlap with mine, which appear below:

• There needs to be better co-operation between all affected parties to clean up the sector. We need a holistic approach involving government, insurers, the car industry, accident victims, medical professionals and legal professionals.
• There should be compulsory medical examinations. No whiplash claim should be settled without a medical examination. In other words: no medical, no damages. This would help to reduce fraudulent or exaggerated claims.
• There must be robust regulation of claims management organisations. This would reduce the negative impact they have on the industry.
• Better enforcement of data protection legislation is desperately needed. This would prevent the misuse of customer data, which concerns consumers and brings the industry into disrepute. It would also curtail the use of unsolicited marketing to encourage people to take up fraudulent or exaggerated claims.
• Better regulation of insurance companies is needed to stop sharp practices such as third party capture (pressuring claimants to settle before the case has been fully considered).
• The sector needs to work with medical organisations to develop better knowledge and understanding of what soft tissue injuries can be caused by motor accidents and to ensure that medical examinations and reports are substantive and objective.
• There must be continued improvement in vehicle safety to reduce and prevent head and neck injuries.

I’d be delighted to discuss any of this at tomorrow’s conference, or via comments to this blog.

Dawn Makin’s case is absolutely tragic for the loss of the life of a young child, as well as the devastating subsequent impact on her life

It also puts the spotlight on serious data protection breaches in the personal injury sector.

A few weeks ago the tragic case of Dawn Makin hit the headlines. The former nurse killed  her four-year-old daughter, Chloe in February 2011 before seeking to take her own life. Dawn Makin herself is now wheelchair bound following the suicide attempt. She is now serving a 12-year sentence following conviction for the killing.

Cases in which a parent kills a child are always awful. How, we wonder, is it possible that any parent would ever do such a thing? Our hearts go out to the poor, innocent child.

The data protection breach background pales into insignificance by comparison. Dawn Makin was sacked for illegally accessing a computer at Moorgate Primary walk-in centre in Bury. Why did she do this? To pass on the confidential, medically sensitive and personal details of 29 road accident victims to her boyfriend Martin Campbell, who worked for a personal injury claims company and who has since pleaded guilty to data protection offences.  He and Dawn Makin split up but she, too, was due in court to on data protection charges after a number of patients quite properly complained to NHS Bury in May 2010. Consequently Dawn Makin lost her job.

Judge Anthony Russell, passing sentence, stated: “The facts of this case are appalling. The victim was a four-year-old child, someone who trusted you. This was a sustained attack. Chloe must have undergone significant and considerable physical and emotional suffering. Finally, the physical injuries you have caused to yourself which are permanent and the knowledge you have killed your only child will be with you for the rest of your life.”

We should also condemn, in the strongest fashion possible, the very existence of the culture that facilitated the actions of Martin Campbell.

If personal data protection rights were properly respected, and the law observed, there would have been no mileage in Martin Campbell seeking to persuade his partner to reveal confidential medical information. As it is, the regrettable truth is that, as you read this, someone, somewhere will be illicitly selling on personal data.

We must hope that cases such as Dawn Makin’s mark the absolute limit of the tragedy that can indirectly  flow from data protection breaches, and further hope it acts as a catalyst to an impetus to prevent continued and future breaches.

Post-Chicago Musings

Last week my first overseas blog appeared. It came all the way from Chicago, Illinois, where I was attending the American Association for Justice annual convention. This week’s blog again has an American flavour, as I reflect on lessons learnt during my stay at the Chicago Hilton, where the conference was held.

I’d like to add to the two general points I made last week (that wherever one finds oneself in the world, claimant lawyers are engaged in an adversarial battle with insurers, and that claimant lawyers here and in America seem to be up against a legislative drive to reduce or cap the costs they can recover). In a sense, what I am going to say is also a general observation, but nevertheless I think it’s an important one.

Put simply, I think that rather than knocking the American litigation landscape we should look at it objectively and ask if it has a thing or two to teach us. I think it does, for reasons I will explain.

The British tendency is to categorise American lawyers as ambulance chasers (or worse). Our press regularly skews coverage of American legal proceedings to paint a picture of a system in which pre-trial jury selection is bizarre, and where US lawyers habitually exaggerate or even invent claims. But while there is rarely ever smoke without fire – some claims about the excesses of American lawyers are undoubtedly true – if you scratch a little deeper there is much to be said in favour of the American way.

The main reason I say this is because the American system is underpinned by a belief that the client comes first. An American claimant who secures recompense for an injury is not condemned as being part of a ‘compensation culture’. Instead, it is accepted and understood that a claimant’s lawyer will do everything in his or her power to gain as much as is properly due for a client. The client’s needs come first, which means that no stone is left unturned in the preparation of a case. Yes, this dovetails with a financial incentive for the lawyer involved, but in America there is recognition that lawyers have businesses to run. That they might make a profit is not viewed as something wrong and unpalatable.

Contrast the way in which civil litigation has developed in Britain – and the way it is heading. Recent years have seen successive reforms which, put together, make it harder and harder for British solicitors to represent clients to the best of their ability. There is a sense, here, that lawyers who make a decent living are somehow ‘evil’, that they fuel the ‘compensation culture’ which is so hated by the government.  This also leads to a very worrying knock-on effect for clients potentially, in creating an environment in which early settlement, at a fraction of what a client could have obtained in damages, will be become difficult to resist. There is some statistical  evidence of this which has recently been presented to the Ministry of Justice by Professor Fenn.

The emphasis, here, is on getting rid of claims quickly, at low cost. In America, the focus is on getting the right result. Here, the beneficiaries of the system can be insurers; in the States, the client’s case is the main thing, and is never or at least rarely sacrificed..

Doubtless there are issues with the American personal injury system. As I say, the point I am making is a general one. Likewise, the way we do things here is not all bad. But my trip to America reminded me of the real role of the personal injury lawyer: to serve injured people. I think we would all do well to remember this rather than uncritically accept governmental  soundings off about the ‘compensation culture’.

Or, put another way, if you were the victim of a serious accident, through no fault of your own, would you rather obtain the maximum compensation to which you were entitled – or settle the case early so that the insurers didn’t have to make a hefty payout?

Ex Turpi Causa in RTA Cases: about as clear as mud

Should a thief who is injured in the course of a burglary be able to sue a house-owner if, say, a creaking and rotten floorboard collapsed as he was tiptoeing around the house, causing him to fall and break his arm?

Many of us will unhesitatingly say ‘no, of course not’. Others might go further and say that if the home-owner went on to injure the burglar, rather than help him, he should not, in law, be liable. After all, as the tabloid press like to remind us, an Englishman’s home is his castle.

But what of a burglar injured by the negligent driving of a co-conspirator while making a getaway? This scenario was recently before the court in the case of Joyce v O’Brien and Tradex. Mr O’Brien stole a pair of ladders from the front garden of a house and put them in the back of a Ford Transit van. He sped off, with his nephew (Mr Joyce) standing on a footplate at the rear of the van, holding onto the ladders. Having careered around a couple of corners, Joyce lost his grip, fell and sustained a serious head injury.

Joyce went to law.  He argued that O’Brien’s insurer, Tradex, should pay him compensation, which raised an interesting point of law: given that both men were engaged in a joint criminal enterprise, did the ex turpi causa principle apply? Latin scholars will recall the maxim in full – it is ‘ex turpi causa non oritur actio’. In plain English, it means one cannot seek redress where one has first acted dishonourably. 

The court held that Joyce’s injuries were caused not just by O’Brien’s driving but by his nephew’s precarious position on the footplate, where he was attempting to secure the ladder as well as himself. There was therefore a causation problem with Joyce’s claim, but it also failed as a matter of general public policy. As Richard Lynagh QC and Suzanne Chalmers, who represented Tradex, have it here: “a participant in a joint enterprise of theft which involves dangerous driving in order to escape the scene cannot recover for injuries suffered in the course of that enterprise.” Moreover, a driver could not owe a duty of care to his co-conspirator in a joint enterprise of theft.

The case is interesting in its own right, and it put me in mind of two recent Court of Appeal decisions. The first is Churchill Insurance v Wilkinson [2010]. Here, the passengers, who were insured, allowed an uninsured driver behind the wheel. The second case is Delaney v Pickett, heard in 2011. This case involved a reckless driver who was found to be a habitual cannabis user who was convicted of dangerous driving. In both cases, the insurers argued that the accident victims had breached their policy terms and were therefore not entitled to compensation.

There is an important backdrop to both cases – section 158 (1) of the Road Traffic Act, which gives an insurer the right to recover any outlay from their insured where their insured has allowed the use of a vehicle by an uninsured driver. There is also a related case, namely Cockayne v Evans, in which Ms Evans gave permission to Adam Cockayne to drive her motorcycle without giving any thought to whether he was insured or not (he wasn’t).

Taken as a whole, the three cases are complicated. The facts differ in each, and it would be inappropriate to rehearse them all here. However, suffice to say that Wilkinson V Churchill ultimately went to the European Court of Justice, which decided that section 151 (8) does not accord with European Directives on the harmonisation of motor insurance. In other words, it cannot operate to prevent a claimant from a right of entitlement to damages, where the claimant is a victim, albeit that the claimant permitted the use of a vehicle by an uninsured person.

Despite this, the Court of Appeal decided not to consider the Wilkinson case when it came to decide the Delaney v Pickett appeal. This, too, visited ex turpi causa territory, because the vehicle being driven was being used to buy and then resell cannabis. The Court of Appeal opted to treat the claim as an uninsured driver claim pursuant to section 143 of the RTA (which governs Motor Insurance Bureau claims) but concluded that it could be legitimately excluded.

Confused? Don’t worry – everyone in the PI sector is too. The bottom line is that while each case should be treated on its own facts, there is an absence of congruity between domestic law and European Directives on motor insurance. Watch this space: just as thieves will continue to bungle their getaways, it’s a certainty that the law here will soon be tested again at ECJ level.