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Association of Personal Injury Lawyers

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I'm Deborah Evans, APIL's Chief Executive Officer. I shall be using this blog to keep you informed about campaining and political work carried out by APIL.

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Year: 2014 | 2013 | 2012 | 2011

A Miscarriage of Justice
Hartwell Jane | 05 Mar 2014

The true tragedy of Hillsborough unfolded when the web of deceit, lies and intricate cover up were finally exposed and laid bare for all to see. Justice is something that lawyers hold dear, and it is clear that a great injustice has been perpetrated. However, did you know that the events of Hillsborough helped to shape the law? That decisions were made in court that still impact –we think unfairly - on cases today?

Where an important decision is made in a case it is known as a ‘precedent’ – a new piece of law that is then applied to similar circumstances in other cases. Such case law is always set within the context of the case in which it is heard – what happened, whose fault was it, and do these people deserve to be compensated? The events of Hillsborough set the law on‘psychiatric harm’, sometimes known as ‘nervous shock’ which is the trauma that you suffer when you witness something truly dreadful happen in front of your eyes - such as a family member dying in front of you in unspeakable circumstances. These memories are burnt irrevocably on the brain, and have a huge impact on a family member’s ability to move forward and live a normal life. This is more than just grief or emotion – this is about family members who end up with a mental condition – whether it is through anxiety, depression,or other serious problems.

At the time, the decision was that only those in the direct proximity of those who died or were severely injured could be compensated. So, a father who watched his son die first hand, and suffers lifelong depression as a result can be compensated, but the distraught mother who hears of the events via the television or the radio, could not be compensated even if she ends up with permanent mental damage as a result of the event.  

This is the rule that is now applied in all cases in which psychiatric harm affects a family member. We think this decision is arbitrary and unfair – if in both cases, the resulting trauma occurred needlessly at the hands of another, shouldn't they both be entitled to compensation?

The decision was based on the facts in the case as they were presented at the time. Facts we now all know to be false. Knowing what we now know about Hillsborough, we can only wonder if the case would have resulted in a different decision if presented with the true facts. It is impossible to answer this hypothetical question. The Law Commission raised its concerns about the arbitrary nature and unfairness of the current decision as far back as 1998, and yet still the law stands. The Law Commission thought it wrong to exclude those family members who were not in close proximity – recognising that those with close ties of love and affection who also suffer a mental illness as a result of the death, injury or imperilment of a family member should be compensated. They thought the law too arbitrary.

APIL calls for the law on psychiatric harm to be reviewed.  It is unfair, unjust and is simply not the way we should treat people who have already been to hell and back.

The interpretation of data
Hartwell Jane | 26 Feb 2014

Never underestimate the ability of factual data to add real credence to an argument.Policy making backed by real evidence is generally a sound way for the Government to proceed. And yet, data is so often open to interpretation, or more to the point, misinterpretation, that it needs handling with care and balance.

Professor Nick Black said this week, having been asked by the NHS to see whether hospital mortality figures are an indicator of poor care, that such figures give “a misleading idea of the quality of care of a hospital" and suggested that the public ignores them. But those figures indicate the number of deaths, and every single one of those deaths matter. The majority of deaths will have been inevitable, and I appreciate his point that if there is no hospice nearby many terminally ill people will die in hospital, but there are undoubtedly local factors to be taken into account. Maybe we need some balance to the reporting to reflect specific circumstances. However, ask a clinical negligence lawyer and they will tell you that at least some of those deaths were needless and could have been avoided.

Indeed, the Keogh report last year found failings in care in 14 of the hospitals with the highest death rates. High mortality data caused alarm bells to ring about Mid-Staffordshire NHS Foundation Trust, which is now in the process of being dissolved.  There is usually no smoke without fire.

Being held to account publicly can be tough. However, it’s a good thing that such figures are in the public domain, even if it may knock a bit of the shine off the NHS.I am a huge supporter of the NHS, which gets things right by far the majority of the time. Infrequently, accidents happen, mistakes are made unwittingly, and people suffer as a result. We shouldn’t try and pretend it doesn’t happen, ignore it, or excuse it. Publishing figures is an excellent driver of real improvements to health and safety. High mortality rates undoubtedly raise question marks, flagging where there is increased risk of poor quality care.This risk-based approach informs the decision by the Care Quality Commission as to which hospitals to inspect.

At APIL we strive to prevent needless injury for those undergoing medical care and treatment. Mortality figures do not provide the whole story, but they provide an alert mechanism that can prevent future medical negligence. We should improve the reliability of the figures, rather than binning them. Hospitals will be pushed to improve, and that can only be a good thing.

Show me the money!
Raizada Robert | 28 Jan 2014

So, insurance premiums have fallen by 12 – 14 per cent according to the insurers? Yeah right. Like many of you out there, I have seen my premium go up yet again, despite having an accident free year, whilst driving exactly the same car. I do appreciate, however, that it’s not just about me. I may have suffered for being female (the European court objected to women being automatically viewed as safer drivers and given reduced premiums). However, as the news stories run online, many of the comments posted reflect some disbelief in the figures.

So how is this figure calculated? Well, the figures are industry-generated and are shrouded in mystery, to say the least. And, let’s face it: the renewal figure quoted by your existing insurance company is often higher than if you switch to a new provider. Loyalty, like crime, doesn’t pay. Sometimes, the same insurance company will even quote you a lower price online or through a price comparison website than they do in the renewal letter. The price you are quoted is not always the price you end up paying. So the calculations could use any of these premiums - statistics could be handpicked to prove a point. Hence our distrust.

So why does it matter? Reducing insurance premiums is a key objective of the Government. The desire to reduce the cost burden has informed recent policy developments in the personal injury field. Referral fees have been banned. Injured people now contribute to their lawyers costs in order that the bill to the wrongdoer –or more importantly their insurer - is reduced. This avoids passing on that cost to the motorist through premiums. That change, plus the introduction of significantly lower fixed fees for lawyers in road traffic cases, has reduced the bill to the insurer markedly. So, we should rightly expect premiums to fall in a way we can all measure.

But the effects cannot have been felt so quickly. The new rules only apply to cases which began after April 2013. It takes time to run a legal case, and the bill isn’t payable until it finishes, so these cost reductions will only just be starting to really deliver benefits to the insurer. How can that possibly have translated into lower premiums so soon? The Government is unlikely to look at further reforms until it sees reductions in premiums which are linked to the last set of reforms. It wants to see any savings passed on to the motorist through a real reduction in premiums. Recent decisions, such as the sensible decision to put the increase of the small claims limit on hold, will have disappointed insurers. In order to kick start the policy agenda once more, insurers will need to maintain a tangible drop in premiums. Hence, presumably we should expect a repeated flurry of announcements as insurers try to prove their point, or am I just being sceptical?

I’m all for a real reduction in premiums. Otherwise all this reform has been all pain, no gain. I’m as keen as anyone else for an update on progress. However, in order to gain trust in the figures would it not be better if the Government were to commission annual research into motor premiums across the industry? There would then be a central, independent method of calculation that was open to scrutiny and a report that was free from bias.

Such figures could then be used to inform policy making with confidence, not suspicion.

Taking on the piste...safely
Hartwell Jane | 14 Jan 2014

It’s the ski season and I am heading off to the slopes. Anyone else doing the same may also have Michael Schumacher’s recent accident in mind. It’s worth asking the question - just how safe is the popular seasonal pursuit?

Skiing, as a sport, comes with inherent danger. It is an extreme sport, and injuries and accidents are relatively common place – albeit, most of the time, minor. However, as anyone who has skied would know, it would be rare for the plane home not to involve at least one person boarding with a newly acquired plaster cast.

Skiing accidents can range from a sprained ankle through to life-changing incidents such as paralysis or brain damage, or in the worst cases, death. For most of us who ski safely on the piste within our own levels of ability, we risk little more than a sprain or a broken bone. For those who ski off-piste, extreme ski in the park, heli-ski, or ski at high speeds, the inherent risks are greater. Prevention is always better than the cure, and skiers need to take responsibility for their own safety.

Whilst skiing may result in accidents, few are as a result of negligence. This means that most of the time, you are unable to claim for your injuries. Your travel insurance will cover the costs of your hospital treatment if required, and the cost of getting you home, particularly if you need three seats on the plane to fit in your plaster cast.

So, in what instances could you make a claim for your injuries? Most likely this is where you are involved in a collision with another skier or snowboarder, and it is their – not your - fault. Perhaps they have lost control, or are skiing too fast, or are not looking where they are going or are not giving you enough space. Problems are sometimes caused by snowboarders who fly onto the piste from a great height over blind jumps with little idea of who may be ahead until it is too late. Snowboarders have caused serious injuries to other skiers’ shoulders and chests in this manner. I am aware of a snowboarder hitting a skier in the chest, breaking three of her ribs, and then snowboarding off blissfully unaware leaving the skier in a crumpled heap behind them.

Accidents often happen on ski lifts as a result of user error - poor exit or entry technique, but for a claim to be made there would need to be negligence – the ski lift would need to be faulty, or not properly maintained and have caused the accident for example. This is rare. Most lift accidents are caused by the inability to balance on a t-bar or to dismount gracefully from a chair. It’s not easy...

Sometimes, the injury is a result of faulty hire equipment. It is really important that shops take care to ask appropriate questions when hiring skis about the ability of the skier, and measure both the height and weight of the skier, along with their shoe size. At the shop I go to, they weigh and measure you to avoid any vanity-based underestimates by the skier. It matters because, without this information, the bindings will not be properly set. In a collision, the skis may not release, resulting in unnecessary broken legs. Indeed, claims have succeeded in exactly these circumstances.

Rarely, the ski instructor may be liable for the injuries sustained e.g. if he leads the class into difficult terrain way beyond their abilities, or takes skiers down slopes with inadequate training.

Occasionally, injuries may be the fault of the resort, if they dig great holes in the piste, or park their snowploughs around blind corners, or, worse still, crash into people with their skidoos. It is rare that the unprotected skier will come off well in a collision with a 10 tonne snowplough.

If there has been negligence and you need to make a claim, you need a personal injury lawyer who specialises in claims abroad as there are different legal systems in different countries. If you have had an accident whilst skiing in Canada or the US, the law can even vary from state to state. Your travel insurance may cover your legal expenses, or you may find a lawyer willing to offer you a ‘no win no fee’ agreement. You need an expert.

Fortunately, negligence is rare, and accidents are just that– accidents – and there is no-one to blame but yourself and your dodgy skiing technique. So, accepting that it is a dangerous sport, how can you reduce your risk? Firstly, wear a helmet. They are compulsory in some parts of America and Canada, but optional in Europe. Yet, you would be a fool not to wear one. They can truly save your life, and certainly reduce the risk of brain injury on a collision.

Secondly, follow the rules. Look in every direction before starting out down the slope. Show respect – give the person in front of you priority, do not endanger others and leave plenty of space between you and other skiers when overtaking. Ski in a controlled way, and adapt yourself to the conditions – if a slope is crowded, slow right down. If you need to stop, do it at the edge of the piste, not the middle. And watch out for the piste markings, particularly the black and yellow ‘danger’ indicators.

Thirdly, if you do have an accident, or witness an accident, and someone is injured – treat it like a car accident -exchange details and call for emergency assistance.

Skiing is great fun, and is good for your spirit as well as your physical health. Accidents do happen, but with common sense, can be avoided. Take care, and see you on the slopes.

2014 - a year to respect the needs of injured people
Hartwell Jane | 02 Jan 2014

Twenty four years ago, a number of influential and passionate personal injury lawyers formed the Association of Personal Injury Lawyers. They formed the association not to look after themselves and their own interests, but to campaign for the millions of people needlessly injured each year by drivers, negligent employers, and careless medics. It was about giving hope of a future to those whose lives had been shattered. It was about care, compassion, and importantly, justice. It was never about the money.

But twenty four years later, injured people are still not getting the justice they deserve. Having made so many steps forward in the fight for justice, the drive to cut costs began to unpick some of the good work we have done. The arrival of the LASPO Act brought about the erosion of damages, leaving  injured people with less compensation in their pockets – compensation that they need. Being injured can be life-changing in the worst possible way. It can prevent you from earning money to pay your mortgage, from driving, being able to live a normal life, whether just in the medium term whilst you recover, or, sadly for some, for the rest of their lives.

The introduction of fixed fees in lower value cases, and proportionality rules and cost budgeting in higher value cases had another sinister impact. Some really deserving cases became, at the stroke of a Government pen, simply too expensive to run. We face the spectre of law firms having to turn away deserving,genuinely injured people if the case is more complex, expensive and hard to fight. So who are these victims? Well, all too often we read about the abuse of dementia sufferers in the press. Yet, because the cases are difficult to prove– the sufferer cannot give reliable evidence, and life expectancy is short, so damages are usually low, while the costs of running a case can be  too high for it to be allowed to proceed. As a consequence, the most vulnerable in society are being injured with no recompense. Morally, this cannot be right. The injured person is still far too often linked with the notion of  fraud. Claiming compensation is too often portrayed as a burden, not a right. Growing claims figures are a disgrace – but when reporting on this fact the media misses the point. The disgrace is the increasing number of people who have been needlessly and thoughtlessly injured.The disgrace is that some employers care little about prevention of avoidable injury, that some of our hospitals and care homes are not always properly resourced, and that our public facilities are not maintained.

And the excuse for this? Cost. Money. And yet we live in a relatively affluent world - a world that chooses to spend money on the wrong things. A world that thinks motor insurance premiums are better spent on flashy replacement vehicles,excessive TV advertising, and price comparison websites rather than looking after the human being injured behind the wheel. We all have choices as to how our money is spent. Together, we can exert pressure on the insurers to find their moral backbone and get their priorities straight.

Martin Luther King once said that he refused to believe that the bank of justice is bankrupt. I agree. There is sufficient money to do the right thing for injured people – it is just being spent on the wrong things – on meaningless, flippant things that have no real value.

I hope 2013 may have been the end of radical legal reform, and the systemised unpicking of our legal heritage. Even if I’m right, 2014 still heralds the start of a new fight for APIL. Our fight has always been about justice. This year, the fight is even more about changing the perceptions of the decision-makers and the influencers in Government and getting them to see things our way. We want to deliver something tangible and real for the injured person – respect.