Of Injuries and the Law
We believe the following to be true, either self evidently, or as a matter of principle or from the author’s 28 years of sitting across the table from real life injury victims.
(a) Injury victims are not volunteers. In any sense that there may be a “market” in the provision of legal services to injury victims those clients are not voluntary consumers;
(b) However sophisticated any victim might be in their own working, academic or professional life it is overwhelmingly probable that they are and will remain “one time consumers” of personal injury legal services and will be disadvantaged by unfamiliarity;
(c) Defendants are invariably insured, thus represented, and held free from financial harm by, insurance professionals highly experienced and well resourced;
(d) The only duty in law owed by that insurance company is to its own shareholders; and this is borne out by their practice;
(e) Injured victims are all individuals with a plethora of concerns, such as any person has, and any litigation that they may become involved in is the source of concern not advantage. As a group Claimants are risk averse. Having been put in the situation of needing to take legal advice either as a consequence of a genuine accident or of the breach of duty by another person, Claimants are more likely to protect or preserve the assets they still have rather than to embark upon any gamble, however educated that gamble might be, in search of additional assets;
(f) We have never met a victim who wanted a cheque more than he wished to turn the clock back;
(g) We believe that a person has a right to go to work and come home again unharmed;
(h) We believe that solicitors (and barristers) are the only effectively regulated professionals engaged in the provision of services to Claimants;
(i) We believe that it has been repeatedly shown to be true that, contrary to media perception and insurance sourced self serving protestations, right thinking individuals, as injury victims do not make claims lightly and, the percentage of injury victims who actually do claim remains low. We note that in a different context this has in the past been used to justify permitting advertising, since the evil then perceived was that insufficient members of the public were aware of their legal rights;
(j) We believe that opportunities to properly regulate the claimants management sector were missed. In particular opportunities to control behaviour, to control the permitted content of advertising and prescribe a “wealth warning” were missed;
(k) The failure to regulate ( properly or at all ) the claims management activities of liability insurers was and remains a real disservice to the public and a major source of high costs;
(l) Damages in English law are and always have been entirely compensatory, designed to put the innocent victim back in the position that they would have been had the injuries not occurred. There is no element of windfall or profit from which an involuntary victim could, in conscience, be called upon to pay legal fees to “re-balance the cost of liabilities of Claimants and Defendants”;
(m) Damages are in any event far too low. Any 10% increase would not even begin to remedy this;
(n) That the “polluter pays” principle is universally acceptable to the public;
(o) That it is the fundamental justification for insurance to spread such losses caused by fault on the polluters’ part, including the costs involved, across society as a whole. On that basis the insurance industry is handed captive and compulsory markets for road traffic and employers liability insurance;
(p) That to protect the public purse Legal Aid was removed from personal injury litigation. We are not aware of any professional in the field who supported this or who now welcomes the possibility of further tightening of financial criteria or the scope of Legal Aid. This decision was by politicians. Legal Aid does not now pay for losing cases, winning cases now do;
(q) The trade union movement has for decades supported its members. There are fundamental differences between legal services provided by trade unions and claims farmers;
(r) Trade union funding has never been available to international finance companies, large contractors or others of similarly adequate resources. Further its role in workplace safety must not be overlooked;
(s) It is the duty of government to provide a proper system for resolution of civil disputes.
