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Opinion: 'Genuine personal injury claimants should not be penalised by new regulations'

The government is proposing changes to personal injury claims, and while that may benefit insurance companies, they may not pass on the savings to consumers, writes John McCarthy.

John McCarthy Partner, McCarthy & Co Solicitors

THE GOVERNMENT HAS announced changes to the personal injury claims system that it says will help to reduce the cost of claims and will thereby lower motor insurance premiums. The relevant changes relate to two areas in particular.

The first arises from an allegation that some claimants in the Personal Injuries Assessment Board (PIAB) system deliberately refuse to attend medical examinations arranged by the PIAB.

The second arises from an allegation that some claimants deliberately refuse to provide written evidence in support of their claim for things like losses of earnings and medical and other expenses incurred in connection with their claim.

What is supposed to be the problem?

It has been alleged that this has been done in an attempt to frustrate the PIAB’s assessment process by preventing the PIAB from determining the true value of the claim, thus ensuring that the case will proceed to court rather than being concluded at PIAB level.

For anyone serious about dealing with a legitimate personal injury claim properly, attending at a medical examination or submitting details of losses of earnings and other expenses when requested to do so simply makes sense and is in their own interest.

Any respectable solicitor will advise his or her client to attend medical appointments and to submit details of losses when they are requested. Any person making an application to the PIAB without a solicitor would be mad not to act in their own best interests in dealing with the system as and when called upon to do so.

Is there really evidence that this is happening?

The only scenario in which changes like these would be necessary would be if it were accepted that there was wholesale influence on the system by rogue solicitors advising their clients not to co-operate with PIAB in order to get cases rejected by the PIAB, or to have them assessed at an artificially low level, leading to costly court proceedings that could and should otherwise be avoided.

But as with so much of the allegations of impropriety on the part of personal injury claimants generally, we just haven’t seen any evidence of this and it defies common sense. If the PIAB system is going to provide a victim of personal injury with the the correct level of compensation for the injury that they have suffered, it would make no sense for them not to accept it. If the figure is right no claimant is going to want their day in court for the sake of it and no self-respecting solicitor would advise a client otherwise.

The government has stated in the context of making these proposals that it is estimated that non-attendance at medicals is an issue in approximately 10% of all assessments. We are not provided with any context on this estimate and we have no way of knowing the factors involved in such non-attendance.

People can miss appointments for all kinds of reasons and it is quite a leap to suggest that all of these non-attendances arise out of a deliberate attempt to frustrate or undermine the personal injury claims process. It is far more likely that deliberate non-attendance accounts for only a small minority of these cases, in which case the numbers we are talking about here are small and have no material impact on the overall claims process.

It’s not all down to claimants

The background to the failure of some claimants to provide written evidence of their losses and expenses, particularly their losses of earnings, is a little more interesting. Personal injury claims often involve accidents at work, and in such cases the claimant’s employer is the person against whom the claim will be made.

It can regularly be a feature of such cases that employees can have difficulty in getting details of their loss of earnings from their employers, and the only form of evidence of loss of earning that the PIAB will accept is a certificate from the employer. In these instances this is not so much a case of claimants frustrating the process but rather those who caused the injuries in the first place.

These changes are being highlighted as required to reduce the cost of injury claims, but there is no evidence that the types of practices alleged to be behind all of this are actually happening. If they are, it is likely to be on a very small scale and driven by disreputable solicitors, who are the only ones who might benefit from this.

If it prevents any kind of deliberate abuse of the PIAB system, the proposed changes may be a good thing. But innocent injury claimants who genuinely miss appointments or who cannot get evidence of loss of earnings because their employers don’t want to own up to their responsibilities should not be penalised in the process. And the likelihood that any of this will have a meaningful impact on the cost of motor insurance premiums seems remote.

John McCarthy is a partner with McCarthy & Co Solicitors, a nationwide law firm specialising in personal injury and medical negligence cases.

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About the author:

John McCarthy  / Partner, McCarthy & Co Solicitors

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