![[Basket]](images/basket.png){kind=small}
Your order![[cover image]](images/issue/BK201805.jpg)
Personal injury claims
[ch 1: pages 25-26]Most personal injury claims must be brought in the civil courts, although where the personal injury (usually psychiatric injury) is the result of discrimination or harassment under the Equality Act 2010, a claim can be brought in the employment tribunal (see Chapter 7). Most employers are legally required to insure against liability for work-related injury or disease suffered by their employees (The Employer’s Liability (Compulsory Insurance) Act 1969).
The funding regime for personal injury claims in the civil courts was radically overhauled in 2013, under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). LASPO swept away the “no-win-no-fee” regime previously used to fund personal injury representation. Under this regime, claimant lawyers were only paid for providing legal representation if their client won their case. To cover the cost and risk of unsuccessful claims, when a claim succeeded the claimant’s lawyers were allowed to charge the losing party a percentage-based “success fee”, on top of the cost of their work. In claims for work-related injury, the cost of this success fee would normally be borne by the employer’s insurers.
In general, these rules worked effectively for claimants injured or made ill by their work because they secured access to specialist lawyers at no cost to the injured worker. The LASPO regime undid this system by abolishing the “success fees” paid to a claimant’s solicitors by the employer’s insurer. Instead, the injured party must now pay up to 25% of their own compensation to their lawyer to fund their legal representation.
The practical impact of these changes has been to reduce access to affordable legal representation for workplace injury or illness, especially for “low-value” or very complex claims. But as Hugh Robertson, senior TUC policy officer for health and safety notes: “Although a claim of £3,000 or £4,000 may be considered to be low value by the government, it is not low value to a cleaner [on the minimum wage].”
Legal aid has not been available to fund personal injury claims since 2000.
Personal injury claims in the small claims court
In the small claims court, each side pays their own legal fees and claimants are usually unrepresented. There is no provision for one side to pay the other side’s legal fees, even if the claim is successful.
The small claims court limit for personal injury compensation cases is currently £1,000. The threshold is low because this court is designed for minor injuries that cause only short absences from work. However, the current government plans to raise the small claims personal injury limit from £1,000 to:
• £5,000 for all road traffic accident (RTA) claims for personal injury, including work-related vehicle accidents; and
• £2,000 for all other types of personal injury claim.
The government has sought to justify these changes on the basis of a need for a “crackdown” on fraudulent “whiplash” claims for road traffic accidents, but these changes, if implemented, will impact on all injuries, including those at work, however caused.
Personal injury claims are often complex and they usually include the need to organise medical evidence. If these changes are made, the employer and insurer will continue to have ready access to their own in-house legal advice and representation, but injured workers will have to fund their own legal fees, instead of those fees being funded by the employer responsible for the injury. In a claim valued at £2,000, fees are likely to eat up most, if not all the compensation.
These planned changes also challenge the ability of unions to fund personal injury claims for their members, which to date have relied on the recovery of legal fees from the insurer in a successful claim. Union solicitors Thompsons estimate that the change will impact around 95% of personal injury claimants in the UK, whether injured on the roads or at work (see Thompsons’ online campaign opposing the changes: #Feeding Fat Cats).