PERSONAL INJURY CONSULTATION PAPER: OTHER MATTERS
I deal with this subject in detail in my forthcoming book – Personal Injury Small Claims, Portals and Fixed Costs available from Amazon here.
On 17 November 2016 the Ministry of Justice published its consultation paper – Reforming the Soft Tissue Injury (Whiplash) Claims Process which can be accessed and responded to here .
In other blogs, listed at the bottom of this piece, I have dealt with the key proposals in relation to the personal injury small claims limit, scrapping or restricting general damages for RTA whiplash injuries, creating a tariff system for more serious whiplash injuries and banning pre-medical report offers, amending the rule concerning discontinuance in Qualified One-Way Costs Shifting and disclosing on the Claim Notification Form the source of the claim.
This post deals with the remaining issues.
Part 7 – Call for evidence on related issues – appears at pages 35 – 42 of the paper.
The Ministry of Justice seeks views on reforms to:-
- Credit Hire;
- Early Notification of Claims;
- Recoverability of disbursements; and
- Introducing a Barème type system.
The Government states that it is not minded to undertake reform immediately in these areas but “will reflect carefully on responses to this consultation and decide how best to proceed.”
The Government invites views on one of four potential models for dealing with credit hire agreements and question 22 reads:-
Which model for reform in the way credit hire agreements are dealt with in the future do you support?
- a) First Party Model
- b) Regulatory Model
- c) Industry Code of Conduct
- d) Competitive Offer Model
- e) Other
Please provide supporting evidence/reasoning for your view (this can be based on either the models outlined above or alternative models not discussed here).”
First party model
Under this model the temporary replacement vehicle would be provided by the policyholder’s own insurer, regardless of who was at fault for the accident.
Thus the policyholder would be required to use their own insurance cover and so credit hire charges would cease to be the subject of litigation.
This would not change the current legal position but would involve the introduction of formal regulation of temporary replacement vehicle providers.
Industry code of conduct
Competitive offer model
This model would allow the at fault party, effectively their insurer, to get their own quote which could be used to challenge the cost of the temporary replacement vehicle from the insurer of the party not at fault.
The Government expresses no preference.
Early notification of injury/intention to claim
This involves notifying the insurer within a set time period.
Consideration is also to be given as to whether a claimant must seek medical treatment within a short period of time. For example in Sweden it is 72 hours.
The Government suggests a possibility of four weeks in this country, failing of which there would be a rebuttable presumption that the claim is minor.
Questions 25 and 26 read:-
“Question 25: Do you think a system of early notification of claims should be introduced to England and Wales?
Please provide reasons and/or evidence in support of your view.
Question 26: Please give your views on the option of requiring claimants to seek medical treatment within a set period of time and whether, if treatment is not sought within this time, the claim should be presumed to be ‘minor’.
Please explain your reasons.”
The options set out are:-
“a) Option 1: Rehabilitation vouchers – which could only be redeemed for rehabilitation sessions received/attended. The rehabilitation provider would then be paid for only the actual vouchers used by the claimant, not for the number of sessions scheduled. This would help prevent phantom rehabilitation claims, but may be complex to administer as the rehabilitation provider could only be paid after the insurer has proof that the rehabilitation treatment has occurred.
- b) Option 2: All rehabilitation arranged and paid for by the defendant – some claimants and insurers have suggested that private treatment/rehabilitation should be arranged through the defendant’s side, possibly providing the claimant with a choice of a small number of providers. This would help speed up access to treatment and allow greater independence and transparency of the process.
- c) Option 3: No compensation payment made towards rehabilitation in low value claims – this option would mean the claimant would need to fund any rehabilitation costs themselves. The cost of rehabilitation is currently recoverable through the payment of other compensation for losses incurred (this is commonly referred to as special damages), the availability of which the government has already made clear it does not intend to restrict, and further primary legislation would be required to implement such a change.
- d) Option 4: MedCo to be expanded to include rehabilitation providers – the MedCo system could be extended to cover rehabilitation services in addition to medical reporting services. The addition of rehabilitation providers would need to be considered carefully, including the identification of the legislative route required to implement changes in this area.
- e) Option 5: Introducing fixed recoverable damages for rehabilitation treatment – this may help prevent unnecessary claims. There could, however, be difficulty in setting the overall rates as different claimants would be likely to have different rehabilitation needs. Thought would need to be given to whether the damages would be set per session or by fixing an upper value limit which could not be exceeded.”
Questions 27 and 28 refer:-
“Question 27: Which of the options to tackle the developing issues in the rehabilitation sector do you agree with (select 1 or more from the list below)?
Option 1: Rehabilitation vouchers
Option 2: All rehabilitation arranged and paid for by the defendant
Option 3: No compensation payment made towards rehabilitation in low value claims
Option 4: MedCo to be expanded to include rehabilitation
Option 5: Introducing fixed recoverable damages for rehabilitation treatment
Please give your reasons.
Question 28: Do you have any other suggestions which would help prevent potential exaggerated or fraudulent rehabilitation claims?”
Recoverability of disbursements
The Government is looking at claimants having to fund their own medical reports without being able to recover the cost, even if they win. The key sentence:-
“Rather than the assumption that the defendant would nearly always pay for the provision of medical evidence, the onus would be transferred to the claimant.”
Question 29 reads:-
“Question 29: Do you agree or disagree that the government explore the further option of restricting the recoverability of disbursements, e.g. for medical reports?
Please explain your reasons.”
A potential future option – a points-based / Barème approach
This is a points system with 100 representing the highest possible rating, that is the most serious injury and moving down from there.
Question 30 relates and states:-
“Question 30: A new scheme based on the ‘Barème’ approach, could be integrated with the new reforms to remove compensation from minor road traffic accident related soft tissue injury claims and introduce a fixed tariff of compensation for all other road traffic accident related soft tissue injury claims. What are the advantages and disadvantages of such a scheme?
Please give reasons for your answer and state which elements, if any, should be considered in its development.”
Question 31 reads:-
“Question 31: Please provide details of any other suggestions where further government reform could help control the costs of civil litigation.”
Part 8 – Legislative timetable and implementation
This is a very short piece on page 43 and simply says that the Government intends to implement the main reforms in relation to the small claims limit, whiplash injuries and banning pre-medical offers as soon as possible.
Part 9 – pages 44 – 74 is a list of the questions.
Part 10 is an introduction to the Impact Assessment, the full text of which appears later in the document.
Broadly it is a whole series of questions asking if those responding to the consultation agree with the assumptions made by the Government in the Impact Assessment.
These further questions appear at pages 75 – 78 of the report.
A reminder that the deadline for responding to the whole consultation paper is 5.30pm on Friday 6 January 2017.
Please see my related blogs:-