Liability SIG Conference Sessions
MOJ Reforms
Garwyn’s Chris Lewis has said Liability Adjusters should not relax or rest on their laurels following the luke-warm response to the Ministry of Justice’s announcements on case track limits and personal injury reform.
After a brief run-through of the practical details and a comparison between the proposed changes verses the actual reforms to be adopted, Liability SIG committee member Chris, told members: “Speed is of the essence. My view is that things will change. We will have to adapt so beware the ticking clock.”
The likely course of events from a practical point of view, said Chris will see the Civil Procedure Rule Committee begin to consider draft rules, practice directions and pre-action protocols as appropriate. The Advisory Committee on Civil Costs will also be asked to make recommendations on the fixed recoverable costs.
“There is nothing within the response that indicates a timescale for the introduction of the new process,” Chris added. “In respect of many issues there is said to be a need for more work to be done. The Government will be working with stakeholders in relation to the fixed costs regime; causation; contributory negligence; standardisation of special damages; claims notification; the extent of investigation required before notification; and the interface between the new claims process and current pre-action protocol.
“In other words,” Chris declared, “an enormous amount of work is still required. We can almost certainly anticipate further delays prior to implementation.”
Legal Update
The past twelve months has seen a plethora of case law developments which will keep insurers and adjusters on their toes according to Michael Davie, barrister at Four Pump Court.
Mr Davie led his presentation to the CILA Liability SIG on two controversial claims, one in negligence and one using article two of the European Union Convention on Human Rights, which have left many wondering if the door to further claims has been pushed open, despite the House of Lords finding for the defendants in both cases.
The claims, Van Colle v Chief Constable of Hertfordshire Police and Smith v chief Constable of Sussex involved the death of a prosecution witness in the former and Mr Smith’s murder despite repeated warnings of a danger to his life which were given to the police. Both claims have put to the test previous law regarding police duty of care as evidenced in cases such as Hill v Chief Constable of West Yorkshire (1989).
“The Van Colle case tried to get around that by claiming a breach of article 2 in the EU convention of human rights; the right to life,” explained Mr Davie. “At first instance Mr Justice Cox acceeded that claim and awarded damages which were relatively modest, around £50 000 – they would have been much higher if the claim had been brought in negligence.”
He continued: “The court of appeal upheld that finding and it said that there had been a breach of duty under article 2. The controversial aspect in this instance was that the police put Mr Van Colle into a special category by requesting him to act as a prosecution witness and because they had increased his vulnerability, it satisfied the test under article 2 for there to be a “real and immediate risk to the life of the identified individual.”
Upon reaching the Lords, Mr Davie explained how their lordships concluded that the requirements of article 2 weren’t met, but that the exercise had blazed a trail for further potential actions. “It’s generally seen now that this does provide an alternative to a negligence claim when a negligence route is barred by findings that the duty of care is limited.”
Blood, Fire, Rubber and Smoke
Liability investigators sent on site visits must consider their own safety, with potential asbestos exposures still a worry, according to Tom Battell of Adjusting Solutions LLP.
Mr Battell’s presentation to the CILA Liability SIG saw him offering members practical points to achieve success in liability investigations and he was quick to point out some serious health and safety obligations: “one real risk of going on site now is asbestosis. If you go on the site of a fire in a pre-1970s building are you going to be breathing in the dust? We merrily used to go in there and do it back in the day, but now you have to think twice. Safety first is the most important decision you’ll make,” he explained.
Outside of this warning Mr Battell emphasised the role of the liability adjuster was to “listen and learn, question, record and analyse.
“Before you rush out there, don’t ring up the claimant and tell them you’ve been appointed immediately. They’ll think that means ‘yes I’m paying you’,” said Mr Battell. He added that all liability adjusters are minded to keep insurers’ key performance indicators in mind, but that should not negate some time spent doing desk top research. “Check your case law, and update yourself. No one can carry every bit of information they need around in their head so before you make any decisions, get yourself up to speed.”
And finally, Mr Battell’s advice turned to the personality. “Be nice. You don’t go there with the idea that you are going only to defend the claim; We are there to get the facts, be open minded and find out who, what where when how and why. If you go there with a predetermined way of finding things, they will clam up on you and you won’t get anything.”
Ralph Savage