Thursday, 17 November 2016

Whiplash

"The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation."

(Bingham's third feature of the rule of law).

Compensation for road traffic accident injuries is part of the law of negligence, which is part of the law of tort, which is part of the common law, which is part of the rule of law. 

The (largely) judge-made law governing the awarding of compensation to those who have suffered injury as a result of the negligence of others is therefore part of the rule of law. It applies equally to all. Where there are objectively different injuries the law differentiates, but it does so in a way that achieves fairness to all injured people and those liable to compensate them. It is a balanced and fair system of justice. 

The government is proposing to make changes to one part of that system to combat what the present Lord Chancellor has called "rampant compensation culture".

Raising the small claims limit for personal injury claims would not unbalance the system. That is a rule change that would apply to all. There seems to me to be a good case for a change of that kind. Likewise one or two of the other proposals in the consultation paper published today by the Ministry of Justice.

The proposals to interfere with the assessment of damages for injury for particular kinds of injury and particular claimants are a different matter. They would create farcical inconsistency and unfairness.

The proposal is to exclude or to severely restrict the entitlement of damages for "minor RTA related soft tissue claims". The working definition of an RTA related soft tissue claim is:


"a claim brought by an occupant of a
motor vehicle where the significant physical injury caused is a soft tissue injury and
includes claims where there is a minor psychological injury secondary in significance to
the physical injury’.

Soft tissues include muscles, ligaments and tendons. I would have thought the skin is a soft tissue also. Bones are not soft tissues and, I suppose, organs are not either. Clearly the proposals are not limited to neck injuries. These are not "whiplash" reforms, they are reforms applicable to all minor soft tissue injuries suffered by occupants of motor vehicles.


What is a "minor" injury? The proposal is that a minor injury is one of  "duration of up to and including six months". An alternative proposal is that the duration should be up to nine months.

The government proposes either to exclude compensation for such injuries, or to restrict them to a tariff of its choosing. It states:

 "The government is of the
view that the level of compensation awarded to claimants is out of all proportion to the
level of pain and suffering actually experienced by most people following a low speed
RTA." 

It might be said that a six or nine month soft tissue injury could be caused in a moderate speed RTA, but let that lie.


The reasoning and the implications of the proposal to exclude or limit compensation for minor RTA soft tissue injuries are striking:
  • The government believes that the courts have been overcompensating injured persons for years. 
  • The government does not believe that compensation has been disproportionate across the board: only disproportionate for minor soft tissue injuries caused to occupants of motor vehicles.
  • Thus the award for a 3 month shoulder strain suffered by a nurse at work (Judicial College Guideline: up to £1860) is fit and proper, but an award for the same injury suffered by a nurse when driving her car is "out of all proportion".
  • Judges have been awarding reasonable amounts to passengers with broken fingers but disproportionate compensation to their fellow passengers with strained wrists. 
  • To remedy the the making of disproportionate awards the primary proposal is to exclude all damages for the injury but to allow the injured person to claim compensation for the costs of treating that injury. Yes, the injury is not deserving of compensation but its treatment is.
  • Setting a time limit for recovery of six months (or nine) will, the government believes, discourage exaggeration. Mmmm. Given the distrust the government plainly has for anyone who makes a compensation claim for a soft tissue injury, this is surprising. It must be confident that the person who has largely recovered at five months would not dream of complaining of some continuing niggling pain for a further six weeks in order to receive compensation. The genuine claimant who suffers injury for 5 months three weeks gets nothing. Their neighbour with a lower pain threshold or a tendency to complain gets compensation.
  • When and how do you determine that the six months threshold has been crossed? If the government insists on a report after six months, but also provides, as proposed, that there should be no offers of settlement before a report is obtained, that will prolong cases. If you allow for an earlier report, do you need a second one to establish that the injury did not in fact resolve within six months? More investigation might be required for minor injuries than for more significant ones.

Meddling with one part of a balanced system of justice is liable to knock the whole system out of kilter. This part of the proposals will cause unfairness 
  • between claimants in the same accident who have different kinds of injury, 
  • between claimants with the same injury suffered in different circumstances, and 
  • between claimants with the same injuries whose symptoms last for slightly different periods.

Of course there exist claimants who lie and exaggerate just as there are those who never bring a claim or who understate their suffering. Implement rules that apply equally to all and let judges decide what award, if any, is fair in each case, and you should have a fair and balanced system of justice. Interfere with how the system applies to one kind of injury (soft tissue) for the benefit of one kind of defendant (drivers) and you unbalance the scales of justice.


 

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