Personal Injury and Clinical Negligence

In a nutshell

Personal injury and clinical negligence lawyers resolve claims brought by people who have been injured, either as a result of an accident or through flawed medical treatment.

The claimant lawyer usually acts for one individual, but sometimes a claim may be brought by a group of people – this is a class action or multiparty claim. The defendant lawyer represents the party alleged to be responsible for the illness or injury.

In most PI cases the claim against the defendant will be taken over by the defendant’s insurance company, which will then be the solicitor’s client. Local authorities are common defendants in relation to slips and trips, while employers usually end up on the hook for accidents in the workplace. In a majority of clinical negligence cases, the defendant will be the NHS, although private medical practitioners and healthcare organisations are also sued.

What lawyers do

  • Manage the progress of a case over a period of months, even years, following an established set of procedural rules.
  • Attempt to settle the claim before trial or, if a case goes to trial, brief a barrister and shepherd the client through the proceedings.

Claimant solicitors

  • Determine the veracity of their client’s claim and establish what they have suffered, including income lost and expenses incurred. The value of the claim (so-called 'quantum') will be based on this.
  • Examine medical records and piece together all the facts. Commission further medical reports.
  • Issue court proceedings if the defendant doesn’t make an acceptable offer of compensation.

Defendant solicitors

  • Try to avoid liability for their client or resolve a claim for as little as possible.
  • Put all aspects of the case to the test. Perhaps the victim of a road traffic accident (RTA) wasn’t wearing a seatbelt? Perhaps the claimant has been malingering?

Realities of the job

  • Personal injury work is driven by the procedural rules and timetables set out in the Civil Procedure rules, which are strictly enforced by the courts.
  • There is a mountain of paperwork, including witness statements and bundles of evidence.
  • Claimant lawyers have close contact with large numbers of individuals and need good people skills.
  • Defendant lawyers need to build long-term relationships with insurance companies. Clin neg defendant lawyers need to be able to communicate well with medical professionals and health sector managers.
  • PI lawyers have large caseloads, especially when dealing with lower-value claims.
  • There is some scope for advocacy, although barristers are used for high-stakes or complicated hearings and trials. Solicitors appear at preliminary hearings and case management conferences.

Current issues

  • The Ministry of Justice have proposed a new claims portal, to be developed by insurers, for claimants in low value PI claims. This would run alongside an existing portal, currently accessible only by claimant lawyers. Insurers seem particularly pleased with both the current and proposed portal but claimant firms are less enthusiastic, fearing that many will struggle with the new portal and that many claimants will pursue their cases unrepresented as a result.
  • The Legal Aid, Sentencing and Punishment of Offenders Act of 2012 (also known as LASPO or the Jackson reforms) withdrew legal aid for most clinical negligence claims, placed a ban on referral fees in personal injury cases, and ruled that successful claimants can no longer recover success fees or after-the-event insurance premiums from the losing party. As a result, the legal sector has become more competitive, with some 3,500 firms in 2016 competing for the same population of claims according to PWC, and larger PI firms have been diversifying into related areas like clinical negligence. Mergers have been the only option for some firms, further adding to the trend for consolidation in the legal market. Law firms are also investing more time and money in marketing strategies in order to target clients directly.
  • In 2015 the Government introduced so-called 'enhanced court fees' for high-value claims. Anyone making a claim worth £10,000 or more now pays a fee of 5% of the claim's value, up to a maximum of £10,000. This increase on the previous flat fee of £1,920 for all cases over £10,000 has been criticised by some in the profession as putting a price on justice. 
  • In an attempt to tackle a perceived US-style 'compensation culture', the government is seeking reform to the process of whiplash claims as part of the Civil Liability Bill. Proposals include introducing a fixed tariff of £3,725 for injuries lasting up to two years and only awarding damaged if victims can produce evidence in a report from an expert. The government aims to implement these reforms by April 2019, but given the bill's slow progress through parliament this may be unrealistic.
  • There are also plans afoot to once again tweak the personal injury discount rate, a calculation used to determine compensation owned to claimants who have suffered life changing injuries. The rate was set at minus 0.75% in 2017 by then Lord Chancellor Elizabeth Truss, stirring the ire of insurers and the NHS who had to pay out greater amounts in compensation as a result. It's looking likely that the government will raise the rate in future and thus reduce compensation awards to claimants.
  • A review of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) has been underway since March 2018: the rethink comes better late than never for the many critics of the 2012 reforms.
  • Continuing the trend of rising clinical negligence costs, the NHS paid out £1.63 billion in clinical negligence damages in 2017-18, a huge 51% increase on the previous year. This is despite the number of new clinical negligence claims tailing off. The NHS Confederation, a lobby group for the service, called on the government to curb the rise; proposed measures include setting fixed recoverable legal costs for low value cases of compensation up to £25,000 and a voluntary alternative compensation scheme for birth injury cases.
  • Driverless cars will prove a contentious issue in the very near future. The fatal crash of a Tesla Motors' Model S car while in 'autopilot' function raises new questions on product liability and regulation in situations where a device takes over some, but not all, of a driver's responsibility; more recent incidents involved a Model S plowing into a number of parked cars in Brussels, and a Californian driver crashing into a police car while their Tesla was in autopilot mode. There's currently no standardised agreement on how insurance and liability will be handled when it comes to autonomous AI.
  • From April 2019, claims management companies (CMCs) will be regulated by the Financial Conduct Authority, which already monitors banks and financial advisers. CMCs will in future need to provide customers with a summary document illustrating the fees they're being charged; highlight any free alternatives to their services; and record and keep all customer calls for a minimum 12 months.