Law: Last call on injury time

Plans to abolish legal aid mean fewer personal injury cases will make it to court. Instead, claims managers are stepping into the breach.
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The Independent Culture
Everybody wants to have their day in court. Or so it would seem if you read the papers. In the past few weeks we have heard about the successful appeal against a woman who sued her former schools for failing to diagnose her as dyslexic (a setback for hundreds of other people with similar claims); an eight-year-old girl who is suing the sports giant Nike over an injury to her ankle; Laura Dyer, the former Flying Squad detective who won pounds 175,000 after her hearing was damaged by surveillance equipment; and the young doctor who pricked her finger on a needle and received almost half a million pounds in damages.

It is not surprising that many people feel we are turning into a nation of complainers, who reach for their lawyers faster than you can say "personal injury".

"It seems to me that we are moving towards a culture of compensation," says Malcolm Tarling, of the Association of British Insurers. "People are much more aware of their rights now, and more inclined to enforce them." The insurance industry paid out pounds 738m in employer liability claims in 1995, compared with pounds 470m five years earlier.

The president of the Association for Personal Injury Lawyers (APIL), Ian Walker, says he perceives "a small but perceptible rise" in the number of people taking personal injury actions. "This is largely due to people's awareness of their rights, better access to the law and better access to things like conditional fees and legal expenses insurance." He is quick to point out that lawyers do not have the capability to take on frivolous actions.

Marlene Winfield, senior policy officer at the National Consumer Council, says there is no evidence that we have moved towards a blame culture or become more litigious. "It is a myth that people want their day in court. They want to come face to face with the other side, and then come to some arrangement. People are terrified of getting on the roller-coaster of litigation, which they have no control over and don't understand.

"You only have to talk to a few people, even about small value claims, to see the terrible cost litigation extracts in terms of stress and emotion. Many people would do almost anything not to litigate, but sometimes they have no choice."

Lawyers say many people are still frightened of taking legal action, mainly because they are worried about how much it may cost. But reforms under way to make the civil justice system more accessible, faster and cheaper could change this. Lawyers can now offer "no win, no fee" arrangements on all areas of civil law except family, with insurance covering the other side's costs if the case is lost.

There has also been a steady growth in commercial companies who handle civil disputes on a similar basis. Rather than visiting a solicitor in his office, people can now have an intermediary "claims manager" visit them at home to discuss their claims. The vast majority of these cases - about 97 per cent - will be settled out of court.

One company, Claims Direct, says it receives about 1,000 new enquiries a week, 70 per cent of which are generated by television and radio advertising. Of those, about 550 are converted into claims. Commercial director Peter Carlisle says he expects a boom in the number of enquiries when the company launches a national prime time television advertising campaign next year.

Those people who do take their claims to court and win cannot expect to walk home with vast amounts in compensation. Cases such as the pounds 3.2m awarded last week to the widow of a banker who died following a medical negligence accident are highly unusual, and damages awards in this country are generally considered to be too low.

Research by the Law Commission last year found that damages have failed to keep up with inflation. One personal injury lawyer says the banker's widow would have received at least double the amount if the case had been heard in the US, where damages are awarded by juries and can include a punitive element. Although groundbreaking compensation claims that make the news might appear extreme, many lawyers say they are a necessary and effective way of voicing needs in society. Test cases can be symptomatic of social problems which extend far beyond the individual who sues, says Professor Avrom Sherr of the Institute of Advanced Legal Studies. A student suing his school over poor GCSE results, for example could be indicative of massive failure in the education system and a way of providing a corrective.

Jack Rabinowicz, the lawyer acting for the plaintiff in the dyslexia case, also acted for the student who won a pounds 30,000 settlement because his school failed to stop him being bullied, and represented the students who wanted to sue their "failing" school for poor GCSE results. "We no longer accept that some people are treated as sacrosanct," he says. Although children suing their schools might seem shocking, Rabinowicz argues that in the Fifties, the idea of challenging the way doctors practised was unthinkable, yet now it is quite common.

Government plans to abolish legal aid for personal injury cases next year mean that in future we may well read less about this sort of cutting- edge litigation. Many law firms say that, without legal aid, they simply could not afford to run expensive test cases which have an unpredictable chance of success.

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