Moving forward on liability issues

David Marshall, president of the Association of Personal Injury Lawyers, has strong convictions on rehabilitation and the alleged liability 'crisis'. Here he talks to Ralph Savage about the state of the British system and why he believes the notion of a 'compensation culture' is misleading

In spite of urging all parties involved in public and employers' liability to be patient over rehabilitation (PM, 10 July, p9), David Marshall, president of the Association of Personal Injury Lawyers, is also determined to push the issue forward as part of Apil's wider remit. He also feels strongly that the alleged 'crisis' in EL has failed to materialise, and while damages are increasing, this is happening at a predictable rate. Above all, he says the compensation culture has no place in British society.

A misleading phrase

"Compensation culture is a misleading phrase," asserts Mr Marshall. "The evidence is quite clear that accident case numbers are pretty stable.

The Compensation Recovery Unit requires all compensators to notify every claim and the number of accident cases has gone from approximately 610,000 to 615,000 over the last three years. To me that's a pretty stable level - particularly over a period when we've had claims management companies arrive on the scene. So there's no evidence of a culture of compensation in terms of the frequency of claims."

Mr Marshall brands last year's report by the Institute of Actuaries - which claimed the compensation culture costs UK plc £10bn a year - as "alarmist" and points to Datamonitor's research, which reached a conflicting conclusion. "Anyway, people in England have got a better sense of accident and fault. Yes, they will bring a claim if somebody else is to blame for it, but they don't expect to run off to a lawyer at the drop of a hat."

Although clearly not a huge fan of claims management companies, Mr Marshall acknowledges they are likely to stay, but believes they must be reined in by regulation and greater transparency. "If claims management companies are going to be around - and I understand there's an awful lot of them out there, despite the two big failures - they ought to be regulated.

This is because there is the possibility for the public to be ripped off and we've been involved with the Law Society working party, trying to assess self-regulation, but let's see what happens - it's very early days."

Some market commentators continue to call for a no-fault compensation scheme, which might ease the pressure on EL insurance, but Mr Marshall refutes any suggestion of this. "The first point is, if you look at the reports, produced by the Office of Fair Trading and Department for Work and Pensions, they conclude there isn't a crisis in EL. There have been issues, such as premium increases, but the reports say that was largely due to under-pricing in the insurance market for a long time, and 11 September capacity-related problems, rather than the compensation culture."

Mr Marshall adds that, in fact, the UK system appears to be ticking over well. "I don't think you need to move to a no-fault set-up if things are working reasonably well at the moment. The UK system is among the cheaper ones worldwide in terms of payroll costs. No-fault schemes generally don't work."

Despite a generally optimistic view of the personal injury market, Mr Marshall is slightly concerned about a potential crisis in clinical negligence rearing its head. "It's important to get the facts right. There were around 10,000 claims annually three years ago and now it is down to around 7500.

Again, the amount paid out on each case has gone up a lot. But the big issue with clinical negligence is that the number of what they call 'adverse incidents' in the NHS is staggeringly high - much higher by far than the actual number of claims brought against the NHS. What's more important is to try and reduce the errors and the culture of mistakes in the NHS, which can be catastrophic in medicine. There needs to be a more open attitude, with more emphasis on prevention and risk management. It will reduce the claims and the damage to people."

Bread and butter

But as the numbers suggest, 7500 annual claims for clinical negligence are not the bread and butter of the average personal injury lawyer. So with fixed fees being introduced for road traffic accidents under £10,000, what is Apil's position? "We have never been persuaded in principle that it's a good idea to set a fixed fee for the investigation, because that is a weapon in the hands of insurers that will enable them to control the amount of work and time spent on the case. However, in the case of fast-track, pre-issue motor, we've got to a situation where the expense of assessing costs was becoming disproportionate. For pragmatic reasons we've said we'll look at those motor cases, which are a large proportion of the total brought."

Mr Marshall adds: "There is going to be a review after two years and if it isn't working we will say it isn't. Our members would like to see an end to the cost war on work and they would like to be paid more swiftly. It's in the insurers' interest to close their books as much as it is in ours."

Putting the next year into focus, Mr Marshall explains that Apil's main aim does not revolve around litigation alone: "What I want to do over the next year is to try and get people to think outside the box. I want to dispense with the old traditional idea that the lawyer is meant to bash on with the case and get some compensation. There are other areas where we can be the champion, such as the role of the lawyer as the client's advocate. Thinking about alternative ways of dealing with injury, like rehabilitation, while litigating against it."

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