FAKE LAW AND “COMPENSATION CULTURE”: A REVIEW: “SPEND HALF-AN-HOUR WITH A PERSONAL INJURY LAWYER (SHOULD THAT MISFORTUNE BEFALL YOU)”
The Secret Barrister has written their second book “Fake Law”, looking at many of the misconceptions that surround the legal system. Here are selected extracts from the chapter on “Your Health”. It takes a critical look at the way in which “compensation culture” has been whipped up, to the disadvantage of the injured. The book is also realistic in that the legal profession must also shoulder part of the blame.
“Spend half an hour with a personal-injury lawyer (should such a misfortune befall you) and you will be regaled with ways in which the law and procedure can be improved. “
“The notion that compensation automatically attaches to every accident that wasn’t your fault, rather than being predicated on nuanced legal concepts of liability, causation and provable losses, is one the legal profession should have been better at refuting. Instead, we surrendered the battlefield to the minority spivs and charlatans, whether because we were happy to take home the marginal trickle-down benefits or because of complacency. The fraudsters and rogues may well be the unrepresentative minority, but we allowed them to be seen as representative. In doing so, we resourced the arsenal of those now waging war on personal-injury rights “
“COMPENSATION CULTURE”: COMPENSATION IS NOT A “WIN”
SB looks at the notion that there is a “compensation culture” and that compensation is somehow wrong and anti-social.
” The contrary argument is almost never advanced: namely that a legal system providing justice and fair financial recompense for those injured through the fault of others is an historically accepted hallmark of a fair society which benefits us all. Shifting from principle to practicality, financial compensation is usually essential for those – including us, our friends and family – whose lives are marred, even ruined, by the transformative injuries they suffer at the hands of others, and who – through no fault of their own – find themselves suddenly unable to work, unable to go about their normal daily lives and, in the most serious cases, unable even to care for themselves.”
THE – OH SO GENEROUS – AWARDS OF DAMAGES: “WOULD YOU CONSIDER THAT A WIN?”
SB provides an alternative way of looking at those – oh so generous – awards of damages for pain and suffering.
“£12,000 envisages a permanent limp, pain or aching, which may have a life-changing effect on aspects of your existence you take for granted. The constant, grinding ache that makes medium- and long-distance driving impossible, rendering you dependent on others to travel beyond your front door. No more jogging, yoga or five-a-side; your active gym-bunny bouncing reduced to slow, painful, limping short walks. From now on, you’ll sit on the sidelines for the mums-and-dads race at school sports day. The postcard Instagram experiences you never got round to doing but always told yourself you’d try some day – skiing in Val D’Isère, ice skating at Christmas in NYC, trekking the Path of the Gods along the cliffs of the Amalfi coast as the crimson sunset illuminates Praiano below – torn up and tossed eternally out of reach.
Not in your lifetime, my friend; instead, each climb and descent of your staircase will be a jarring, wincing souvenir of the accident; every stare from a stranger in the street as you limp to the shops, a reminder that you are forever changed. For somebody in their thirties, with a good forty years of mobility left in them, this windfall would work out at around £300 a year, or the cost of two coffees a week. Would you accept that trade?
At the upper end of this miserable scale, total blindness and deafness would attract general damages of £350,000. If you have thirty-five years left to live, that’s ten grand a year for the inconvenience of losing your sight and hearing. Would you consider that a ‘win’?”
THE WHIPLASH CAPITAL OF EUROPE
Large changes to the system for personal injury damages are afoot. These changes are being made on the basis of prejudice and assertion. There is no solid evidential basis for this. SB considers this “mantra”.
“So ubiquitous is the mantra, there must be a solid evidential basis for it, surely? Well, not really. The House of Commons Transport Committee heard evidence from the insurance industry, the government and legal professionals in 2013, and concluded that the ‘whiplash capital’ claim ‘cannot be conclusively proved or disproved from the information available’, adding that ‘It is surprising that the Government has brought forward measures to reduce the number of fraudulent or exaggerated whiplash claims without giving even an estimate of the
comparative scale of the problem.’65 An in-depth academic study by law professor Ken Oliphant traced the origins of the ‘whiplash
capital’ claim to a report on whiplash published by the Association of British Insurers (ABI) in 2008. This was based on a 2004 European study comparing data collected from questionnaires circulated in ten European countries in 2002. Professor Oliphant found that the data was incomplete, the methodology was flawed and the ‘whiplash capital’ claim could only be substantiated through ‘selective use of the data’, alternative interpretations of which would render any of Italy, Germany or Switzerland the ‘whiplash’ or ‘motor claims’ capital of Europe. The (aged) data showed that Italy has nearly 50 per cent more whiplash claims, that in Switzerland they cost ten times as much per claim, and
that bodily injury claims in general cost more in Italy, Germany, France and Spain than in the UK.
The professor told the House of Commons Justice Committee, ‘Such evidence as there is has been misleadingly and tendentiously presented by participants in the public debate about the alleged “compensation culture”. Actually, the same evidence makes clear that, by most measures, the UK is not the whiplash capital of the world or even of Europe.’
The Roman advocate Cicero stated that if you are considering a crime taking place you ask the question “who gains” – only he said “Cui bono” (this is my observation by the way, not SB). SB does consider why these changes have taken place.
“So why was it so important to push through these changes, in the face of dire warnings by experts? The sweetener for the public
was that the bill would save the insurance industry £1.3 billion, meaning, the government told delighted newspapers, that the
average customer would save thirty-five pounds a year on their car insurance premiums. The corollary – that these savings
would only be possible as a result of genuinely injured people being deterred from pursuing legitimate claims – was not shouted
quite as loudly.
However, when the bill was presented, the government omitted – and, when pressed by MPs, outright refused – to include any mechanism requiring insurers to pass these savings on. Instead, the Justice Secretary was happy to hold in his hand a piece of paper signed by the leaders of twenty-six insurance companies promising to pass on the savings, if only the government would be so good as not to compel them to. The government agreed, blithely defying the Justice Committee’s warning that it was being ‘over-optimistic’, and ignoring the fact that, despite
insurers having saved £11 billion since the last round of personal injury reforms, insurance premiums were higher than ever.”
“The mood music having been carefully orchestrated, our elected representatives proceeded to erect ‘an unacceptable barrier to justice’, blocking ordinary, poorly citizens from seeking redress at their lowest ebb. The insurance industry will stand to save £1.3 billion. For this – the enrichment of insurance CEOs and the curtailing of your access to justice – the government has calculated your price, to the thunderous applause of the media seals, at a vague, unenforceable promise of thirty-five pounds a year”
LAWYERS HAVE TO ACCEPT SOME OF THE BLAME
The thing about SB’s books is that they are honest and realistic. Not all blame is attributed to the media, or insurers. Just as their first book described some of the “bad’uns” operating in the criminal justice system, SB does not shy away from pointing blame at some members of the legal profession.
“Lawyers and their third-party associates have much to answer for, too. While there has been welcome tightening, in recent years,
of the rules governing claims-management companies and referral fees, for decades the legal profession has allowed its public image to be moulded by Compo4U billboards and daytime-TV adverts for claims hotlines. It has benefited lawyers to allow the something-for-nothing perception to take root, as it has helped cast the net wider and reel in the fishes. The notion that compensation automatically attaches to every accident that wasn’t your fault, rather than being predicated on nuanced legal concepts of liability, causation and provable losses, is one the legal profession should have been better at refuting. Instead, we surrendered the battlefield to the minority spivs and charlatans, whether because we were happy to take home the marginal trickle-down benefits or because of complacency. The fraudsters and rogues may well
be the unrepresentative minority, but we allowed them to be seen as representative. In doing so, we resourced the arsenal of those now waging war on personal-injury rights “
THE DISENGAGING OF OUR CRITICAL FACILITIES
” It is bizarre that, for a nation so clearly susceptible to suspicion of ulterior motive, we disengage our critical faculties and swallow blindly the propaganda of billion-pound insurance companies. We lie back and allow ourselves to be enveloped in misinformed resentment towards our suffering neighbours receiving restitution, viewing it as a sore on, rather than a credit to, a civilised society”
“The key, I think, to turning us all against each other has been in convincing us that personal-injury law – like so many other aspects of the justice system – is for other people. People we will never meet, whose motives are by nature impure, and whose financial gain is the sum to our zero. It perhaps doesn’t occur to us, until it’s too late, that it could be us hospitalised by cheap, malfunctioning factory equipment at work, or our child injured by that driver on his mobile; that we might need the services of a personal-injury solicitor, or find ourselves limping into a courtroom preparing to duel an insurer’s legal battalion armed with nothing more than Wikipedia.
Nor, when it comes to the bitterness over other people’s windfalls, do we put ourselves in the shoes of the seriously injured and ask, Would I swap lives?
If we did, and we answered truthfully, we would see the true meaning of compensation. Not a lottery win to be coveted, but the next-best thing our society can offer to try to put things right.”
THE BOOK REVIEW BIT
Should you buy it?
Is it value for money?