The Personal Injury Debate

In this issue of Modern Insurance, we hosted a Personal Injury forum with some of the industry’s experts. Though opinions can differ greatly, and we don’t always agree with what we read, these debates allow our readers to see expert opinions and insights into the topic at hand. So, let’s meet our forum experts and see what they have to say.

QFollowing reforms, will injured people acting for themselves find it harder to recover damages – further to that, will the damages they receive justify their efforts?

Chris Chatterton: Yes, they will, but it all depends on insurer behaviour. Some insurers might make claiming extremely easy, yet others will make it difficult and look for opportunities to refute claims. Either way, it will be harder than it is now - where all the work is currently done for them by a solicitor.

Consequently, I think many people will turn to claims management companies for assistance – and they will fill the void left by the law firms. Of course, many of these organisations might not provide services and advice at the standard we see across the legal profession today. In this case, the current system of one side trying to maximise the claim and the other trying to minimise it will be perpetuated. That said, I think that the level of damages proposed will still make it worthwhile for people to claim, particularly if the process is quick and simple. One particular area that needs to be looked at is fraudulent claims; if insurers make settling too easy, then these could significantly increase. Two big areas are still uncatered for in the ‘new world’. The first is ‘how do I get treatment if I’m injured to help me recover?’ and the second is ‘what do I do if some aspect of my claim is disputed?’. Here, the market is crying out for two things; and at handl Group, we think we have found the solutions to these problems:

• A simple digital-based treatment solution that comes at an appropriate market price that both sides agree works. Take for example Speed Medical’s recent introduction of EQL’s digital triage tool ‘Phio’ into its rehabilitation services, providing early intervention and a customer-centric solution to injured parties, and allowing insurers to appropriately manage the claims process; and • A user-friendly, fast arbitration process that can be endorsed by both sides, introducing software ecosystem Claimspace, which settles claims that cannot proceed on MoJ portals, streamlining processes and increasing productivity. Michael Lewis: The loss of the ADR facility in the new portal is a significant blow, which will inevitably mean that unrepresented claimants will find it harder to recover damages. Whilst details of any replacement mechanism are awaited, the noises coming from the MOJ suggest that there may be an oral hearing at Court on liability based on information submitted in the CNF. Not only is this adding more Court involvement into the process rather than less, it runs the risk of making the customer journey that much more expensive, longer, and forbidding. The test portal may have a welcoming user experience, but the basic design and flow for making a claim for losses will - in my opinion - regretfully lead to unrepresented claimants making errors that will result in them being unable to claim and receive their rightful damages. Furthermore, the reduction in damages will have a knock-on effect on the amount of time and effort unrepresented claimants will put into pursuing a claim, such that they will either abandon their claim, or instruct solicitors to take over the handling of their case.

Jason Tripp: There certainly will be disparity post-reforms between a personal injury motor claim and other types of injuries. These are the unintended consequences of the reforms that impact on genuinely injured claimants as well as those exaggerating or claiming frequently. Whilst the current legal system for dealing with injury compensation is arguably expensive for the industry it does provide an effective route to recover damages. Post reforms, a consumer without motor legal cover that includes small claims handling and alternative dispute resolution (not in scope for the new Litigants in Person portal) will have to manage the claim themselves.

This is certainly going to be more difficult and more costly, either they will have to paid for legal assistance separately or do everything themselves - including going to court if liability is disputed. We have a responsibility to ensure we remove or reduce barriers to genuine claimants, putting the customer first and building a service around that principle, is what we need to do now.

QHow might the industry work better to educate the consumer on the claims process in order to better manage customer expectations?

Jason Tripp: One of the problems that we have in the insurance industry is how little attention consumers tend to pay to their insurance needs. It’s been just over 20 years since the Access to Justice Act enabled consumers to benefit from conditional fee arrangements. Our collective expectation is that if we are injured then we will be able to get help for free. The reforms will completely change this and consumers aren’t aware.

There is a real risk of companies failing to meet the FCAs Treating Customers Fairly principles if they haven’t considered the products and services they are selling and how they will protect customers under the new regime.

It’s imperative that all insurance providers working with consumers understand this and have trained staff, simple content and literature to articulate this properly. Consumers need the opportunity to decide if they want to take additional legal cover that includes a small claims handling service, to ensure assistance is available without extra cost should they be injured in a road traffic accident. I think companies need to consider very carefully if their customers are going to be ‘let down’ if they have a policy that doesn’t give them the assistance they previously enjoyed for free, and what that could mean for complaints and brand reputation.

QWhat role will technology have in affecting access to justice?

Michael Lewis: Technology can and will have a transformative effect on access to justice. Other areas of industry have welcomed technological developments, but the conservative nature of the law (both on the claimant and defendant side) has prevented it being as fully adopted as it should. Cost pressures will inevitably drive the greater adoption of technology. Lawtech solutions, such as our Claim Technology platform, will usher in a truly touchless digital claim, providing better client journeys, faster claims processes, and improved profit margins allowing lawyers and insurers to concentrate on value-added work, whilst giving a sense of control to clients - helping to maintain and improve access to justice.

QWill giving unrepresented claimants a wider choice of experts be confusing?

Chris Chatterton: Yes, it will. At the moment, all they need to do is choose a PI solicitor, all of whom come well qualified. In a world where they have to do things themselves, they may turn to a claims management company – but how will they know which one is best able to assist them?

Not only that, if they pursue claiming themselves, they will also have to source a medical report – central to the claims process. Currently this whole process is managed for them by a range of experienced medical agencies but in the new world, they will have to make their own decisions without any market knowledge or data. And of course, if their claim is disputed, they may be faced with paying the bill themselves (something that doesn’t happen today). Subsequently, when it comes to treatment - if they need it - claimants need to be aware of how to source it, pay for it and claim it back. This detail is all unknown/unclear. And finally, who do they turn to if the insurer disputes some aspect of the claim? At the moment there are no clear escalation procedures and defined outcomes. So, at present, the new system will work fine if everything goes according to plan and the case is simple and settles quickly … but unfortunately, this wouldn’t always be the case.