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Personal injury claims
[ch 1: pages 29-30]Most personal injury claims must be brought in the civil courts, although where the personal injury (for example, 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 required by law to insure against liability for injury or disease to their employees related to their work (The Employer’s Liability (Compulsory Insurance) Act 1969).
In April 2013, very significant changes were made to the funding of personal injury claims in the civil courts under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA). The Act abolished the “no-win-no-fee” regime that was operated by most personal injury lawyers. Under this regime, claimant lawyers were only paid for their legal representation if their client’s claim succeeded. To cover the cost and risk of the claims that were not successful, in the event of a successful claim the claimant’s lawyers were allowed to charge the losing party (who, in a claim for work-related injury, would be the employer) an extra percentage-based “success fee” on top of the actual cost of their work.
In practice, these rules enabled personal injury claims to be run by specialist lawyers at no cost to the injured client, because the insurers to the party at fault paid all the fees. In a workplace context, they enabled people injured at work to afford legal representation for claims against their employer. The LASPOA regime abolished “success fees” payable by the employer. Instead, the injured party now has to pay up to 25% of their compensation to their lawyer to fund their legal representation.
The practical impact of these changes has been to make it much harder for workers to find affordable legal representation for a personal injury claim against their employer for work-related 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 who earns £6 an hour.”
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 costs, and claimants are usually unrepresented.
The Small Claims limit for personal injury compensation cases is currently £1,000. This is because the jurisdiction is designed for minor injuries, causing only short absences from work. The government is, however, consulting on raising the small claims personal injury limit to £5,000 for road traffic accidents (RTAs), including work-related RTAs, from April 2017. The proposal, if implemented, carries real risks for injured claimants, who will be expected to conduct complex personal injury claims on their own, including organising medical evidence, and to represent themselves. In practice, the employer and their insurer will not be affected, since they have ready access to legal advice and representation.