PPOs were introduced by the Courts Act 2003 which gave courts the power to grant claimants settlements to cover them for the rest of their lives. Two years after their introduction less than five claims were settled using PPOs whereas by the end of 2010 almost 20 claims were settled in this way. This increased trend has been driven by low interest rates amongst other factors. 

Credit rating agency Moody’s has warned that the increase in PPOs could expose insurers to inflation risks (future increases to the costs of care), tie up capital and suppress earnings. It also exposes insurers to unknown longevity risks, namely that, if a claimant outlives medical expectations insurers will have to continue to pay out, unlike lump sum settlements where if the claimant outlives medical expectations then they simply have to accept that their compensation payments will fall short.

PPOs on the whole are not a bad thing. They are particularly useful in helping claimants manage their payouts, but the downside for insurance companies is that it means they will have to deal with many long term claims.

Insurers used to pass this risk on to life insurance companies through annuities, however low interest rates have meant that this is too expensive for life insurance companies to guarantee fixed payments. Furthermore, in the UK the annuities market is restricted in that it does not cover all medical conditions, particularly those of a more serious nature, which ironically are likely to be subject to PPOs.

It is the uncertainty over the eventual costs that are causing concerns, particularly for small or general insurance companies who may not be used to dealing with personal injury claims under PPOs, whereas this is something that life insurance companies are somewhat familiar with.

The real worry is that the impact of these PPOs will not really be known until a few years down the line when it might just be too late to reverse its affects.

Although it is actually relatively simple to pursue a personal injury claim, the perceived complexity of such claims has led to a burst in claims management companies (CMCs).

Those that are thinking of using these companies should be wary of whether they are actually getting professional advice – many use ‘claims specialists’ rather than actual solicitors – and so advice can sometimes be diluted, or not be as professional as one might expect.

Problem #1: Time Delays between the Accident and the Claim

One of the biggest problems with personal claims is the time delay between the accident and the beginning of the case. Most of these claims are based on the negligence of the defendant, and so need to be pursued within 3 years from the date the injured party becomes aware of the fact that they have suffered an injury. Note that the time limit does not begin from the date of the accident, but from the date at which the claimant realises their injury.

Any claims which are pursued after this period are normally held to be invalid, as too much time has elapsed.

Problem #2: Obtaining Evidence for the Injury

One of the main reasons personal injury claims can fail is because there is a lack of evidence in proving the injury, or that the injury was a result of the defendant’s negligence. Not only will the injured party need to prove the existence of their injury, but they will also need to demonstrate the impact this has on their day-to-day life.

In order to demonstrate these things, it would be extremely beneficial if you had testimonies from eye-witnesses. In order to be able to obtain this sort of information, you would need to have taken down their details on the date of the accident. Although for most people, when the accident occurs they are more concerned with getting checked out by an ambulance and calling the police, it is imperative to also make sure that you look for any people on the street who might have witnessed the accident as well, so you can take down their details there and then.  Obviously if you are injured it is better to get checked out before you begin looking for witnesses.

If you need to prove that the injury has affected your everyday life, you may need to gain medical advice, or a medical expert’s testimony to evidence your injury. If some of the damages you are seeking are due to lost earnings, the court may require that you have documentary evidence from your employer to prove your lost earnings.

Problem #3:  Economic Issues

A third area where issues can arise concerning the pursuit of a personal injury claim is the economic strain it may place on your finances. In circumstances where the defendant denies that he has been negligent, and therefore not liable for your injuries, the claim will have to proceed to court, which can be very expensive. In cases like this, legal costs and fees can rack up quickly.

In order to avoid the legal costs associated with pursuing a claim, it is important you are aware of the different financial schemes that are available to help with such costs. Many solicitors offer services on a ‘no-win-no-fee’ basis, which provides peace of mind that should you lose the case, you will not need to pay the legal fees. Another option may be to see a solicitor who deals in publicly funded work (which used to be known as ‘legal aid’).

Internet-savvy motorists have also discovered that their company, who offered them a pricey renewal quote, are offering the same cover cheaper through price comparison sites. This is a very risky strategy for insurance companies, who are assuming that loyal motorists will accept the higher renewal quote without question/looking around. This demonstrates how little the companies are taking into consideration individual drivers’ circumstances, skills, and accidents to date.

It has been found that insurance premiums have increased by 17% in the last year alone, with insurance companies quick to offer excuses of increased whiplash claims and increased fraudulent scams.

The BBC’s Watchdog programme highlighted this ‘trick’ that insurance companies use. Interestingly enough, it is not limited to the smaller insurance companies – instead companies like MoreThan, Admiral and Swiftcover were all offenders. The programme followed a MoreThan customer who had just received a renewal quote of £750. After visiting some price comparison websites, he found the same cover, from the same insurer, for just £512. MoreThan were contacted, and when demanded an explanation, the best they could do was offer the customer the £512 rate for renewal, instead of giving any justification as to their renewal quote pricing structure.

MoreThan later spoke to the BBC and stated that they need low premiums to attract new customers, but existing customers are quoted renewals based on the risk they pose to the company. If that truly were the case, then why were they so quick to offer the customer mentioned above the cheaper renewal rate?

Another customer the BBC Watchdog programme highlighted was a customer from Admiral. Paying £1000 a year for 2 cars, he was shocked to receive his renewal quote, which required him to double his premium at £2000. Searching online, this customer found exactly the same type of cover with the same insurer for just £961. After ringing up Admiral, they again were quick to offer him the cheaper rate without fuss. When asked for an explanation for this strategy, they too attempted to give a similar justification for their pricing structure.

Having read about these case studies, it is imperative that all drivers who manage their insurance do not just accept the renewal quote from their insurance company that gets posted through the door. At the very least, customers should check online price comparison websites, to ensure they are aware of the prices their insurance company are offering to new customers. According to GoCompare, some 27% of people do not even do this small step, allowing their insurance company to automatically renew their policy at the end of the existing one. Estimated savings which drivers could have saved by not doing this reach around £3.1 billion.

Everyone recognises that with the current economic climate, companies are feeling pushed to retain their profits. However, it becomes quite unacceptable when companies are resorting to these sort of tactics in an attempt to fleece their loyal customers. It means that customers are having to work extra hard in order to spot these tactics in an attempt not to trip over them. The sheer fact that these companies are readily offering the lower, new premiums when loyal customers complain about their renewal quotes is evidence to the fact that they are just trying to rely on those that will renew automatically without questioning the raised price.

waring are an established practice which have been around for more than 15 years and a personal injury firm that has been around that long is usually a good indicator that the firm is good. This arises from the simple proposition that with no win no fee, where the law firm not only does not get paid if they don’t achieve a successful result but also will have paid out for many expensive outgoings as the case progresses such as medical experts fees, court fees and other disbursements, if a firm gets too many of these cases wrong they go out of business.

We are excited about the link up and look forward to working with Waring.

The rise of cosmetic surgery negligence cases can be explained by one simple fact – more people are having it done. However, what is more worrying are the surgeons that people are going to when having their surgery. Due to the expense involved with cosmetic surgery people are putting money before their health. As a result people are not carrying out any due diligence because they want to save money and surgeons are cutting corners because they want to make money. For example, there have been some recent cases where people are using cheaper surgeons, carrying out a variety of procedures when in fact they are only trained for one. Some people even go abroad for these treatments and it is even possible to go on a package holiday where cosmetic surgery is included.

Going abroad for cosmetic surgery can be very dangerous. As well as usual issues such as language barriers, your travel insurance is unlikely to cover you if things go wrong with your cosmetic surgery and things can very easily go wrong. There have been a number of cases abroad where it has been found that surgeons are either not qualified to do the job, their practices do not have the same health and safety standards as the UK or the surgeons are simply not competent to carry out these procedures. This has resulted in a number of horror stories from utensils being left inside bodies following procedures or unconnected parts of the body being permanently damaged.

Other common blunders by surgeons both in the UK and abroad include: failing to obtain proper consent, not taking down medical history, leaving permanent scars and asymmetrical features. In these cases, if the patient has carried out their due diligence and is not to blame for the procedure then they may be entitled to compensation. The amount of compensation varies depending on the seriousness of the negligence and the long term effects, but it can be substantial. You may be surprised to learn that on average, cosmetic surgery negligence cases are more successful than medical negligence cases, particularly in cases of breast surgery, eyelid operations, facelifts, nose reductions and weight loss.

What is important is that before a patient undergoes cosmetic surgery, their doctor carries out a psychological evaluation to make sure that the patient understands what surgery they are getting and that they do not have unrealistic expectations. Duty of care and health and safety should always be put before profit making otherwise the number of cosmetic surgery negligence cases are going to continue to rise.

The families of literally thousands of victims who have died due to exposure to asbestos will now be able to put forward successful claims for compensation thanks to a new ruling made by the UK Supreme Court.

There has been much confusion within the courts surrounding the area of asbestos claims and judges in lower courts have been unable to come to an agreement as to when an insurer becomes liable to pay compensation in cases of exposure to asbestos.

In 2008 the High Court ruled that the company’s insurer became immediately liable from the moment the victim inhaled the asbestos but, just two years after this ruling, the Court of Appeal claimed that, in certain cases, it would only be after the symptoms of the asbestos exposure had developed that the insurer’s liability would come into play.

In many cases of asbestos exposure, such as asbestosis, the symptoms of exposure can take up to 30 years or more to make their presence known and, due to this confusion, the Supreme Court was asked to step in and interpret insurance policies to give everyone involved a clearer picture of the insurer’s liabilities and the point at which they begin.

The Supreme Court have done just that and their new ruling states that liability lies with the insurance company providing the employer cover at the time the victim inhaled the asbestos.

This ruling has been seen as a real breakthrough for many victims of asbestos exposure and their families who, before the ruling, would have had to wait possibly decades for symptoms to arise or even death to occur before being able to put in a claim.

Many insurers took the view that it was the insurance company providing cover at the time that the symptoms of asbestos exposure became apparent that were liable, not the insures providing cover during exposure and it is this mindset that has caused so many victims and their families to miss out on what is rightfully theirs.

The other problem that many victims had to face under the old ruling was that, over the period of time it may well have taken for their symptoms to become obvious, the insurance companies who provided those victims with cover at the time may well have ceased to operate.

Sadly, many insurance companies were more than happy to sit back and continue to receive premium payments for extortionate lengths of time, especially in cases of mesothelioma, a cancer caused by exposure to asbestos which can take up to 60 years to develop, knowing full well that they would sway liability when the victim eventually put in a claim. With the new ruling in place it is hoped that we will see an end to the likes of these insurance charlatans and their underhand dealings.

The ruling has also brought results for the relatives of a victim of asbestos exposure who have spent the last 6 years fighting for justice. The insurance company they were claiming against argued that, because the illness developed outside the period of cover in question, they weren’t liable for the compensation pay out, however, the courts rejected their argument and finally, after their long and arduous ordeal, the family received what was owed to them.

It’s a sad fact that asbestos exposure is still a prolific problem and claims more than 2,000 lives every year, however, it is hoped that, with the new ruling in place, the families of those victims will feel a little more protected and, although it could never make up for the loss of a loved one, compensation payouts will be easier to obtain.

A defective product is, quite simply, a product which is not safe or not as safe as expected. The injury may be caused by a defect in the actual product itself, through not being put together or used properly because of poorly written instructions or through unsuitability of the use for which the product was advertised.

Some of the most recent cases involving defective products include:

• Drugs and medication
• Children’s travel/car seats
• Sofas

Making a Claim

Anyone who has suffered an injury from a defective product has the right to put in a claim for compensation against the product’s manufacturer.

The defective product does not need to have been bought or even owned by the claimant and if more than one person has suffered an injury from the same defective product then it may be possible to make a group claim or ‘class action’.

When an injury has occurred via a defective product there are several forms of evidence a personal injury solicitor will require in order to put a case together and make a claim.

• If possible the individual should take photographs of the injury as soon after the occurrence as is feasible

• If the injury required hospital treatment then the individual should keep records of visits and travelling expenses

• If possible the individual should try to obtain written statements or reports from all medical staff who saw and treated the injury including nurses, surgeons and GPs

• The individual should keep records of any medication prescribed and any prescription costs incurred

• The individual should also keep notes on the symptoms suffered as a result of the injury as, often, symptoms can be ongoing

• If possible the individual should try to find receipts and original packaging for the product or, if the product wasn’t owned by the individual, ask the defective product’s owner for any receipts and proof of purchase they may have

• The individual should also keep an accurate record of any loss of earnings incurred because of the injury

Most personal injury solicitors work on a ‘no win no fee’ basis which means that if, for some reason, the individual making the claim doesn’t win their case then their insurance will cover the legal costs incurred by the defendant as well as their own solicitor’s fees.

If the individual making the claim is successful then the defendant will be expected to pay all court costs as well as the compensation.

The compensation will be calculated by:

• The severity of the injury and the symptoms suffered by the individual

• The impact the injury has had on the individual’s day to day living

• Whether the individual has suffered any loss of amenity due to the injury – can no longer carry out or take part in activities which gave them enjoyment or pleasure

• The long term effects of the injury

• Loss of earnings suffered by the individual as a direct result of the injury

• Any other costs incurred by the individual as a result of the injury such as travelling expenses, prescription costs and treatment costs

The Case of the Toxic Sofa

In the past few years numerous claims have been put forward for defective product compensation due to cases of so called ‘toxic sofas’.

The toxic or contaminated sofas were treated with a highly toxic chemical used to prevent mould. This chemical is known as Dimethyl Fumarate and, once the crystals within the chemical are exposed to a heat source such as body heat, the crystals turn into a gas which can then pass through and individual’s clothing and cause quite severe health problems.

Dimethyl Fumarate gas can cause:

• Breathing/respiratory problems
• Skin rashes
• Blisters and burns
• Sores and lesions
• Eye irritations
• Fatigue

The sofas were purchased from a number of UK retailers including Walmsley’s Furnishing, Land of Leather, Argos and Homebase.

The retailers were ordered to pay a joint sum of £20 million to all the people who suffered from exposure to the Dimethyl Fumarate inside the sofas with payments varying from between £1,175 and £9,000 depending on the severity of the victims’ injuries, making this one of the UK’s largest consumer group litigations in legal history.

If you are injured at work and it was not your fault then you may be entitled to compensation. Accidents at work can have a serious impact, not just on the employee but also their family. Employers have a legal duty of care to their employees (as well as visitors and contractors) which means that employers are responsible for health and safety in the workplace. This means they should undertake regular risk assessments and pay sick pay to any employee who is entitled to it.

Employers are responsible for all aspects of the working environment including heating and ventilating the premises, lighting, providing safety equipment such as gloves and goggles as well as training staff appropriately. If they have neglected any of these responsibilities and this results in injury to an employee then the employer is liable.

What type of injury is covered?

Whilst every possible type of accident cannot be listed or contemplated, what is clear is that accidents can occur at anytime during the course of employment. A work place injury can be caused by anything from coming into contact with dangerous materials and substances (such as asbestos) to slip and trip, manual handling injuries like heavy lifting or inadequate training and failure to provide protective equipment. Accidents are common, be it in the office, warehouse, building site, factory, farm or on the road. If you drive for a living, be it a car, van, lorry or operating a forklift, then your employer is required to provide a vehicle that is safe and roadworthy, otherwise if you sustain an injury they may be required to pay you compensation. You can also make a claim if the injury has been caused by another member of staff.

Compensation claims are not limited to physical injury and can include psychological and stress related injuries. The more serious an injury the more compensation you are entitled to as the purpose of compensation is to put you in the position you would have been in had the accident not took place. So if you are unable to work again for a long period then your compensation calculation will take into account loss of earnings. If your claim is successful you will also receive payment for your medical expenses and in really serious cases your care needs will also be compensated.

Claims Procedure

Claiming against an employer can be stressful and awkward, so it is important to follow the correct procedure otherwise you may not be successful and could create an uncomfortable working environment for yourself.

Firstly, report all health and safety risks to your employer before an accident has taken place, this increases the burden on the employer. Upon the occurrence of an incident you should seek medical attention immediately. Be sure that you have the details of any witnesses, such as a colleagues or customers so that you can contact them to obtain evidence such as a statement. Other evidence such as photographs would also prove to be useful.

Finally, make sure that the accident is recorded in your employer’s “accident book”. This provides a record of any incidents that have occurred and this can facilitate any time off or compensation claims. If the injury is serious then it should also be reported to the Health and Safety Executive (HSE), who are the national independent watchdogs for work-related health, safety and illness.

You should contact a solicitor immediately if you have suffered from an injury at work. Most solicitors will work on a no win no fee basis on these types of cases and if successful you will receive 100 % of the compensation. A compensation claim for injury at work should be made within three years of the date of the accident, unless the injured party is under 18 in which case the three years do not start until their 18^th birthday. If successful the compensation payment will be made from your employer’s insurers.

Medical negligence also known as clinical negligence is a form of professional negligence. It is an act or omission by a health care provider, where the treatment provided falls beneath the standard of practice expected from a professional of the medical community resulting in the patient suffering injury or even death. The act or omission is usually an error in judgment or a procedural mistake that could have reasonably been avoided. Medical negligence entitles the patient or their family to compensation, subject to loss being proven.

Examples of clinical negligence include:

• Failure to diagnose or making the wrong diagnosis
• Making a mistake during surgery
• Prescribing the wrong drug
• Failing to obtain consent before commencing treatment
• Not warning the patient of the risks a particular treatment carries.

Legal claims in medical negligence must be made within three years from when the incident occurred or when the patient first realises they have suffered an injury. Where the patient is a child, the time limit is inapplicable and the claim can be brought by the age of 21 because the three-year time limit begins at the age of 18 when the child becomes an adult.

Proving Medical Negligence

Clinical negligence cases are complex. The simple part is demonstrating that a duty was owed. Legally a clinician owes a patient a duty of care whenever they undertake care or treat. It is the second part that is harder to establish. There are two strands to the case both of which have to proven in order for the claim to be successful.

1. Negligence – The medical practitioner is negligent in their treatment of the patient if the care received falls beneath medically acceptable standards; and
2. Causation – The negligence or breach of duty of care directly resulted in an injury or death.

 Negligence

To define medically acceptable standards or reasonable standard of care is a complication in itself. The nature of it is subjective and is often proven by expert witness evidence. The expert would have to have the knowledge, experience, education and training of the specific issue. The expert’s testimony is used to establish whether the treatment and care provided fell below the standard of care expected from a medical professional.

Negligence or lack of negligence by the medical practitioner can be proved using the Bolam Test. The Bolam Test, which was established in the court case of Bolam v Friern Hospital Management Committee, says:

• A clinician would not have acted negligent if their course of treatment and care was in accordance with practice accepted as proper and responsible in the opinion of a responsible body of persons skilled in their specialty.
• Therefore the standard against which one is judged is that of their fellow colleagues in the same ranking, not the best or most wisest and prudent practitioner.
• The standard applied is of an ordinary and competent medical practitioner.

Once negligence is proven it is necessary to show that the second strand of the case also exists.

Causation

There are two forms of causation, which can determine whether the negligence of the practitioner resulted in the patient suffering injury or death. They are legal causation and factual causation. Sometimes for simplicity they are not distinguished in cases, however each must be demonstrated.

Legal Causation

Legal causation is ascertained by the test of forseeability. The question to ask is whether the consequences of the breach of standard of care were reasonable foreseeable? If they were then could steps have been taken to avoid harm? In most cases it needs to be shown that the breach of care was known and foreseeable and would have potentially been avoided had normal medical protocol and policies been followed.

Legal causation prevents claims for unrelated injuries being included in a claim for compensation. Even if legal causation is proven, the injury or death being a direct result of clinical still has to be shown. This is known as factual causation.

Factual Causation

Factual causation involves proving that the medical practitioner’s act directly caused the patient harm. It seems simple and easy to show, however in practice it is the opposite. The basic ‘but for’ test can be used to establish causation. The harm caused to the patient would not have occurred but for the negligence of the clinician. On balance therefore, if injury or death would have happened regardless of whether the practitioner was negligent or not, they cannot be held liable. Factual causation can be proven using further medical treatments, expert affidavits.

This no costs rule does not apply to personal injury claims and the other important factor is that, whilst the evidence of witnesses and the claimant and perhaps defendant is important, there is often other evidence available, some quite clear rules regarding for example accidents at work or car accident and road traffic law and medical evidence. consequently, there is often greater visibility on prospects of success with injury claims than, for example, with employment claims.

Another advantage for claimants is that personal injury solicitors will pay out for the expenses of starting and pursuing a claim, such as court fees and medical evidence costs, which would otherwise mean that many would not be able to bring a claim.

One issue to be aware of is that with no win no fee agreements is that the lawyer will have a say in settlement. If the defendant, or more accurately often their insurer, makes an offer which, whilst not at the top end of what might be achieved on a best case scenario at trial, is considered reasonable on a risk/benefit analysis by the lawyer, it may be that the client must accept the lawyer’s decision. This should always be discussed and clarified between solicitor and client at the stage the no win no fee agreement is entered into.

This post courtesy of Waring solicitors, who in addition to their main website also offer injury claims advice via their personal injury claims site.