Medico-legal Minder

Sometimes it is necessary to state what should be the obvious. So it is that Jackson LJ (of the eponymous reforms) found it necessary in the course of giving judgment in the recent case of O’Connor v Pennine Acute Hospitals HS Trust [2015] EWCA Civ 1244 (3^rd December 2015) to remind court users that a drawing or diagram is likely to be better than a thousand words or gesticulations.

In this appeal relating to surgery for a vesicovaginal fistula during which injury was caused to the left femoral nerve, the court was concerned to note that no photographs, diagrams of plans were available to show the judges “the location of the various abdominal organs and nerves and how they fitted together”. Counsel had sought to overcome this – “Mr Feeny [counsel for the appellant] valiantly did his best, by waving a finger around in the air to show us what was what. That was hardly ideal.” It surely must have been an interesting display of finger wagging to witness given the issues in the case. The case was adjourned for the preparation of a proper sketch plan.

And so the court came to offer guidance for future cases, guidance which is equally applicable to an expert providing a written report in the course of, or in expectation of, proceedings:

“In any case involving medical, engineering or other scientific issues the bundle should include any necessary drawings or photographs, so that the court can readily understand the technical background and context.”

That guidance should be extended to all experts at all stages of legal proceedings, that they should provide all necessary drawings or photographs so that any user of the expert evidence and reader of the expert’s report who does not have the expert’s expertise is readily able to understand the background and context of the expert evidence, and the reasoning process from which the expert opinions come. A photograph, drawing or plan is often worth a thousand words when it comes to trying to communicate with a lawyer or judge. Waving a finger in the air instead is unlikely to be a satisfactory teaching method.

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The ‘Spending Review and Autumn Statement 2015’[1] (26^th November 2015) may have had some surprises for the economists and political commentators. But it was a surprise that it had a surprise for the personal injury practitioner. Whiplash claims below a certain value will be abolished, if the government and the ABI (Association of British Insurers) have their way.

You may think that ‘whiplash claims’ are just a way of building up a holiday fund or a nest egg for most claimants. But even the ABI recognises that a whiplash injury is a neck injury and often the result of a road traffic accident.[2] However according to the Autumn Statement (para 1.143) compensation must stop because:

“The government is determined to crack down on the fraud and claims culture in motor insurance” and to “end the cycle in which responsible motorists pay higher premiums to cover false claims by others”;
“Whiplash claims cost the country £2 billion a year, an average of £90 per motor insurance policy, which is out of all proportion to any genuine injury suffered”.

Of course, we have not been provided with the evidential basis for fraud in this area or of the need to crack down on it, or of this so-called “cycle” and none is presented. And the source for the quoted cost of whiplash claims and the claimed cost to every motor insurance policy is given in the Autumn Review as the ABI’s own assertion available on its website. To give credit to the ABI, in the reference referred to they go on to state that “we are actively working with the insurance industry and the government to … make the system more efficient for genuine claimants” although that appears to have fallen on deaf ears as that end result is not obviously behind the government’s plans to abolish claims for some genuine claimants and make more claimants bring the claims to court by themselves.

We will no doubt hear in due course how the assertion that the proposed changes will “remove over £1 billion from the cost of providing motor insurance” is calculated and we will not hold our breath for the heralded “average saving of £40 to £50 per motor insurance policy to be passed onto consumers” i.e. motorists.

The plan proposed is two-fold. Firstly to remove the right to any damages at all for the injury itself (damages for pain and suffering and loss of amenity) for a class of “minor soft tissue injuries”, although consequential losses (loss of earnings, medical costs) will be recoverable.

How that class will be defined we wait to see. If it is by what would be the value of such general damages, and it is difficult to see what else it could in practice be, then we can expect interesting claims at around the level imposed where the value will be argued up and down by the respective parties.

And in the absence of a medical report how will it be known how significant the injury is, but if the consequence of the report, and following appropriate skilled advice, the value of the claim is considered to fall just below the decreed claimable value, who will pay for that report?

Further it would be strange if no damages were to be recoverable for a ‘minor’ whiplash injury but damages would be recoverable for a finger fracture or a laceration to the arm, and what about ligamentous damage to the shoulder or severe bruising to the chest?

Secondly, personal injury claims with a value up to £5,000 will be dealt with in the small claims court where legal costs are not recoverable, and therefore in practice legal representation is not available for claimants. (The current level of damages for pain and suffering and loss of amenity is £1,000.)

The current Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases gives a range of awards between £3,630 and £6,600 for whiplash injuries to the neck and soft tissue injuries to the shoulder where a full recovery takes place within a period of about one to two years, so it can be seen that a £5,000 limit will put claims where there have been significant consequences for an individual into a court system where they will be unrepresented and will work out how best to present their claim on their own. In contrast an insurer defending such a claim will decide as a commercial matter whether or not it would wish to spend policy-holders’ money in seeking to defend or minimise such a claim using a professional with experience of such matters, or, perhaps more likely, make offers of settlement on which the claimant will be unable to obtain independent legal advice.

The government will consult on the details in the New Year. For anyone who considers that if they are negligent when driving a car and cause injury, then their insurer should pay appropriate compensation to the injured party, it will be important to keep an eye out for the consultation when it appears as, on past form, there is unlikely to be much time in which to respond.

Meanwhile bear a thought for the potential consequences for the injured road user. As Andrew Ritchie QC has suggested: “So when the elderly and the retired suffer a rear end car crash which is not their fault and thereafter suffer intense neck pain and reduced neck movement for 3-6 months, they will recover no damages, not a bean, nothing. This change does not improve the state of the nation, it undermines safe driving and puts more profit into the pockets of the same insurance companies who paid hundreds of thousands into the Conservative Party’s election funds before the last two elections.”

[Who or what is medico-legal minder? Terms and conditions apply]

[1] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/479749/52229_Blue_Book_PU1865_Web_Accessible.pdf

[2] https://www.abi.org.uk/Insurance-and-savings/Topics-and-issues/Personal-injury-claims/Whiplash-claims