Personal injury claims: An uphill battle for fairness

A society will be judged on how it treats its weakest members. Amid the good, ongoing work to protect the rights of injured people by the Association of Personal Injury Lawyers and others, there is still an uphill battle for fairness.

I became APIL's president last week at the association's annual conference, where fairness was our theme. Fairness is the theme of all of APIL's work. As I look ahead at the battles to come in my presidency the price of this fairness keeps being raised.

After six years' work, APIL's tenacity on the discount rate paid off when the rate was corrected. But it took little over a month for the method of how the rate is set to be subject to formal consultation. By the hysterical reaction to the rate change from insurance companies you would think that they were all about to go out of business, but the sky has not fallen in for them after all.

APIL has, of course, pulled up a chair for the debate and submitted a response to the consultation. One of our top priorities will be to persuade the new government that the current formula for calculating the discount rate is fair and accurate.

APIL has been making evidence-based arguments while the insurance industry makes itself heard. I will continue APIL's work towards a greater, wider understanding of personal injury law and the needs of the people it assists. I feel very strongly that preserving the rights of injured people should be the concern of every member of our society. Nobody plans to be injured. It could happen to anyone at any time.

The snap general election means my year at the helm has started with reading the tea leaves. The last government's projects may well be picked up again and we have to be ready for that. We have made the point time and again that an agenda against people who have genuinely suffered whiplash injuries is misplaced and, if this is pursued by the next government, it is important that the damages available for injured people are fair, and reflect the judicial college guidelines.

While the next few years are going to be all about the Great Repeal Bill there will, at least, be several years of political stability which we can use to promote some of APIL's long-term goals and interests.

Much of my own experience is in workplace injuries, so safety in the workplace is a particular interest of mine and it has always been a core concern for APIL. First and foremost, we want to ensure that needless injuries don't happen in the first place. If and when they do, injured employees must be treated fairly. Much of the law and regulations governing health and safety at work will be tied up in our exit from the European Union and we will monitor the impact of that very carefully, and work hard to hold the government to account.

Reform of the law on bereavement damages in England, Wales, and Northern Ireland, for those left behind when workers do not make it home at all, is long overdue. The system in Scotland is much more flexible and understanding of modern relationships, and it is deeply unfair that people in the rest of the UK are treated differently just because of a fluke of geography.

We will be picking up the matter with parliamentarians following next month's election and pressing on with our Fairness for Families campaign, which also includes a call for reform of the law on psychiatric harm. The current law is a legacy of the Hillsborough disaster and the official interpretation of those events was clearly wrong '“ it is long past time for change.

As both the Department of Health and Sir Rupert Jackson deliberate a regime of fixed costs, APIL is stressing the fact that there is more to the right level of costs than simply the sums. The DoH's consultation, which closed last month, served the department's interests more than it did those of the injured patients by seeking to reduce the financial burden against itself for its own repeated failures.

APIL maintains that the bad practices of NHS Resolution in handling cases must be addressed and a process must be fixed before the costs are calculated. In our current dysfunctional system, claimants and their representatives cannot expect their cases to run effectively, and fairly, in a fixed cost environment.

Meanwhile, we will continue to stand up and intervene where we need to. It is incredibly important to make the nuts and bolts of our system work. APIL's intervention in Qader v Esure [2016] EWCA Civ 1109 helped to ensure that cases which come out of the portal and go into the multi-track are not subject to fixed costs, for example.

Whatever happens, APIL is ready.

Brett Dixon is a consultant personal injury solicitor and runs Brett Dixon Training Limited. He is a member of the Civil Procedure Rule Committee and the sub-committee tasked with rewriting the disease and illness pre-action protocol

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