PERSONAL INJURY: An Introduction

Contributed by Malcolm Henke, head of large and complex claims at Horwich Farrelly Solicitors

Leaving the club… 

Our departure from the European Union is, of course, about so much more than the shape of our sausages. Perhaps we should have shouted more about the regional funding for infrastructure, transport, the arts, employment creation and regeneration...

And, in our arena, the thousands of laws and regulations affecting every aspect of business and domestic life. S2 European Union (Withdrawal) Act will retain most of these laws: at least for the time being but with various reservations and limitations.

S69 Enterprise and Regulatory Reform Act 2013 had already seen the UK retreat from what was effectively strict liability for breaches of health and safety regulations (with effect from 1 October 2013). Although the regulations remain in place, a claimant is once again required to prove negligence on the part of the defendant. This is seen by some as a necessary response to the ‘compensation culture’ in employers’ liability cases, but others view it as a retrograde step, unfairly reducing the burden on employers to provide a safe working environment for their employees.

However, the regulations are still in place and to a large extent they set the standard against which common law negligence may be measured. They may also give rise to criminal sanctions against the employer which, as with any conviction, may be cited by a claimant if it is relevant to their claim.

A soft Brexit will probably see little else change but a hard Brexit could offer the opportunity to turn the clock back in a number of areas relevant to personal injury claims.

As a result of judgments in the European Court of Justice, there has been a steady expansion in the situations in which compulsory insurance cover is required for accidents involving motorised vehicles. If this continues it poses a threat to activities carried out on private land where any mode of powered transport is involved. That could impact on golf buggies and even ride-on lawn mowers. It is seen as a threat to the continuation of a number of ‘off-road’ events where there is a risk of injury but where it has not been necessary or perhaps possible to insure against that risk.

There has also been an erosion of the number of ‘defences’ available to motor insurers to avoid the payment of compensation to seemingly undeserving claimant passengers. At present these claims are often funded by the public at large, given that the responsible driver is rarely insured. The EU view is that if the driver caused the passenger’s injury then compensation should be paid, irrespective of the ‘morals’ of the situation, for example that they were engaged in a criminal activity to which the use of the car was merely incidental; or that the passenger was aware that the vehicle was not insured.

It is conceivable that post-Brexit the Road Traffic Act 1988 could be re-amended to redefine the circumstances in which compulsory motor insurance cover is required and also to impose a bar on those seeking to recover compensation when injured while travelling with a driver known to be engaged in an unlawful enterprise, including driving whilst uninsured. This could enable the law to reflect what the reasonable person in the street considers to be appropriate, rather than the views of European bureaucrats.

Save for these limited situations, it would probably be a retrograde step for the UK to reject the influences on domestic law of the various EU Motor Directives. Together with Rome II they bring a large measure of uniformity and consistency to the handling of road traffic accidents throughout the EU and other signatory countries. One possible exception might be a restriction on the damages recoverable in the UK by a non-resident claimant.

There may be less appetite to reverse the impact of other EU-inspired legislation even though it has made life more difficult for some. The Consumer Insurance (Disclosure and Representations) Act 2012 and the Insurance Act 2015 have both made it harder for insurers to void and avoid policies of insurance due to misrepresentation or the alleged non-disclosure of material facts. Quite rightly, the onus is on the insurer to prove that the proposer deliberately, recklessly or carelessly gave incorrect or incomplete information when answering questions when taking out the policy. Misrepresentation and non-disclosure are now more ‘black’ or ‘white’ than before and a great deal of ‘grey’ has been removed.

There can be little doubt that the Working Time Directive (when coupled with the minimum wage) has pushed up the cost of providing care to injured claimants but given the controversy over zero-hour contracts few would wish to see a return to unrestricted working hours.

Similarly, the EU has led a tightening up of data protection regulations. Provided these do not prevent legitimately interested parties from processing data for the purpose of detecting and preventing fraud, they are clearly of huge benefit in controlling the misuse of information about individuals.

Despite an apparent outbreak of sickness claims by British holidaymakers, there is now better protection for those with legitimate claims, thanks to the Package Travel Directive which came into force on 1 July 2018. It improves significantly on the protection provided by the previous (1992) regulations.

Not all EU-inspired regulations relating to consumer products are popular but the UK is not likely to repeal any that promote, for example, the manufacture of safe electrical goods, or how the consumer may seek redress if injured by a faulty product.

There are many examples of unpopular and even ‘silly’ (returning to the sauages) EU laws and regulations but in the context of the law affecting personal injury claims, we may need to recognise that some of our complaints about EU regulation probably relate more to the perception that they are not enforced uniformly across the European community, rather than that they are unnecessary per se.