Wednesday, 3 August 2011

Diving Accidents, Negligence, and Insurance

Whenever I read of a case such as that of Kylie Grimes, who was left tetraplegic after diving into a swimming pool, I usually have two reactions.

The first reaction is a humane feeling of empathy: we all do stupid things, and there by the grace of sheer luck go any of us. Just imagine if the stupid things we have done meant we all had ended up with severe disability.

The second reaction is anger.

The anger is for the smug sorts who always scoff at the claimant for bringing such a case at all. The knowing ones who say that "of course it is the claimant's own fault" and "they only have themselves to blame".

This response show a lack of understanding as to why such cases are brought.

In fact, such negligence cases are always artificial; they are framed just so as to obtain proper funding for the care the victim needs for the rest of their life. The costs of that care will always be high, regardless of whether the victim can successively frame their case as a negligence claim or not.

Perhap the wisest thing I was ever taught at law school was said by Ray Hodgin, the expert in the law of insurance who taught the tort course at Birmingham University.

"Always remember," he said, "that the law of negligence is part of the law of insurance, and not vice versa".

Indeed, in practice, many negligence claims - especially in the field of personal injury - are insurance driven (or driven by there being a defendant with assets).

Read the judgment of the Kylie Grimes case carefully; see how the eventual decision as to whether she will get monies to cover the rest of her life depends on a sequence of assessments of law and evidence as to her and others' culpability.

But there is no assessment of her needs as a tetraplegic, though those needs will be the same whatever that outcome of this judicial exercise.

This is surely not the way that those who have very serious accidents should be dealt with.

In my opinion, those who have had very serious accidents should be entitled to appropriate compensation without the lottery of a negligence claim. A central fund should be established, financed by insurers, for those who have serious accidents and require life-long care. It probably would be cheaper for the insurance companies than fighting litigation. I understand this is the sensible approach of other countries.

The law is useful for certain purposes, but the law of negligence cannot be the best way of determining whether those who suffer very serious accidents get the resources they need to have appropriate care.

It may well be that sometimes it is "all their own fault" but in a civilized society the lack of funding for the care of the seriously injured is our responsibility, and not that of the claimant.


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Tim Gill said...

I agree with your conclusions, as someone who (though not a lawyer) comes across such cases in my work from time to time. I am told that New Zealand has the kind of system you call for.

Ewan said...

"A central fund should be established [...] for those who have serious accidents and require life-long care."

I believe we call that 'The NHS'.

MoazzamAA said...

Great post, although based on a very unfortunate story. I wasn't aware other countries had such a system. I have had a couple of weeks of work experience in this area of law for both claimants and defendants.

While both sides have their good/bad points, what is most striking is that a lot of the cases rack up relatively high pre-litigation costs that far too often exceed the compensation due to the victims. Perhaps that is the nature of the beast, but that does not strike me as being right, either morally or even in plain business terms (for the insurers).

Nick said...

This is exactly the reasoning behind the Accident Compensation Corporation in New Zealand. Kiwis have given up the right to sure in cases of personal injury and are compensated and rehabilitated by this central fund. I think it's a super idea!

Brainduck said...

Why don't we fund everyone with a disability to live a decent life? I'm not sure why someone whose disability was caused by accident should be treated differently from someone with a genetic condition or other cause.

@Ewan - common misconception, but the NHS does *not* cover the costs of someone who needs long-term care. 'Social care' is paid through councils, and due to recent council funding cuts that's been drastically cut back on, and eligibility varies a lot around the country.
'Disability living allowance', at various rates, is paid to disabled people to cover extra costs relating to disability. It is about to be replaced by 'Personal Independence Payments', which will have a 20% smaller pool of funds to draw from.
'Independent Living Allowance', intended to support disabled people to move out of institutions and live in the community, will be cut altogether.
'Personal budgets', a way of choosing your own care package rather than accepting whatever your local Council provides, have been drastically cut so people are no longer getting the care they need.
Other things, from wheelchairs to specialist minibus services, are all being cut.

Support to live a decent life with a disability is not generally through the NHS, as most of what's required isn't strictly medical treatment.

People don't know this, and that's why it can be cut so badly.
See or for writing by those who will be worst affected, and for detailed arguments from many of the charities for people who may have care needs.

Care funding is about more than older people.

LondonScientist said...

@Ewan There is more to care for those living with a serious disability than just the medical care the person needs. The day to day activities that we all take for granted become impossible when you are suddenly rendered tetraplegic, as in this case. How do you wash, cook, pay the bills, shop for groceries, put out the bins, clean the house, etc. Somebody else has to do them for you, not everyone has a a friend or family member willing and able to give up their job to become a full time carer. So somebody must be employed to do this, and they have to be paid. Where does that money come from? We also face this issue with elderly people unable to cope on their own any more.

catdownunder said...

Yes, New Zealand does have a scheme and there is talk of introducing a National Disability Insurance Scheme here which would cover all types of disability needs. As to how well it works however is another story. There are still people with extraordinary needs who fall through the net.

AndyJ said...

I am not sure why there is the implicit distinction between someone who becomes severely disabled due to a specific event (an accident in all probability) in their life, and the person born with a similar level of disability or those who contract a medical condition such motor neuron disease in later life. Clearly if someone is grossly neglifgent and this leads to another person's injuries then there should always be the tortious option for this, if only so that the settlement may include an element of punishment for the tortfeasor and to help to offset some of the costs of care which the state will inevitably pick up. But why should the insurance industry as a whole pick up the bill - rather like the the MIB's uninsured drivers agreement - where there has been an accident for which no-one other than the injured person is to blame, but ignore the person struck down by disease?

Maria Wolters said...

I completely agree with what brainduck (3/8/11, 23:14). People can become severely disabled for many reasons, and health care covers only a small fraction of their needs.

Some of my work is on home care technology, which gives me second hand experience of how complex the system is. What's available varies from trust to trust, integration between health and social care can be good or poor, and the complexities of service provision are very difficult to navigate - even for healthy people.

Unfortunately, I don't think a common fund is the solution - it's at best a short-term band aid. What's needed is a reform of the underlying care system.

Right now, the focus is on saving money, often at the expense of quality. The bloggers brainduck mentioned are a very good resource.

I also recommend Gimperella (@maryfclark on Twitter) who knows the system from both sides - as somebody giving care and as somebody needing (and sometimes failing to receive) care.

Harbo said...

Heaving damaged people and their family into the "torture disguised as lottery" that is the adversarial legal system, just further damages them.

One of the biggest problems is that to maximise "settlement" during the "process" they must maximise disability, thus hindering their rehabilitation, and final health. (and consuming much of the "settlement" on the way)

Also the argument that they "need the settlement to live" is just an admission of the failure of the health systems....This is worse in a system where the health care has been corporatised leading to a two tiered system (haves v have-nots)....I believe your new government is tricking you into this at present..

Matthew Taylor said...

I don't have any sympathy with the argument for a central fund - much less one funded by people who buy insurance: let's be clear that anything "funded by insurers" is actually funded by those purchasing insurance policies; it will be a cost passed through in the cost of cover.

It would make far more sense for people to carry accident insurance, but in that scenario we would be having a debate about the fact that the insurance company had refused to pay out due to the insured being largely or wholly responsible for her injuries. Take up of such insurance is unlikely to grow while there is the illusion of free, universal health care, together with the mistaken belief (identified by Brainduck above) that social care is part of health care.

I know it won't be a popular view, but this sort of litigation is about trying to assign liability (which, I acknowledge, is then translated into providing for the claimant). Liability in this case is, as Mrs Justice Thirlwall pointed out, squarely with the claimant, who did something risky and was injured as a result.

The case was brought against the householder and the NHS Trust. The latter admitted a breach of duty, and that matter has still to come to court.

Steve Jones said...

I don't see how it is equitable that costs are loaded onto those that just happen to take out insurance. In effect, it just becomes a hypothecation tax. Put up the price of insurance (which is happening rather a lot) and more people will just seek to avoid it. Once such a fund is established, then you can guarantee that the demand will rise hugely - it's scope will undoubtedly increase as the principle of perverse incentives applies.

It's also inequitable to consider the care costs of those involved in accidents. Far more people are affected by health issues than such accidents as this. Any such scheme would surely be the responsibility of the state. After all, doesn't NI stand for national insurance?

DavidG said...

Matthew Taylor suggests accident insurance, but that is equally prone to holes which people fall through (and the insurance companies are adept at making sure as many as possible do so). A particular problem here is insurance for disabled people, because just because you are already disabled in one way doesn't mean you won't become disabled in another. As already pointed out, insurance is not an answer for those disabled from birth or childhood, and there are equal complications facing adult disabled people, who still need cover just as much as anyone else.

Taking my own case as an example, at the time I became disabled (fall in a public place resulting from my own inattention), I didn't know that I had a syndrome that predisposes me to joint injuries and long term pain and disability as a result. How would an insurance company have reacted to suddenly discovering that little detail when presented with a fairly complex spinal injury? Equally it took several years to realise we were dealing with long term disability, and how would the insurer react if 20 years down the line I have to go back to them and say 'things are getting worse', as is the case. That may be the truth, but the insurance industry doesn't have a reputation for responding well to such claims.

Disabled people face considerable difficulty in accessing existing insurance schemes: health insurance is useless to me, so many things wouldn't be covered, while travel insurance leaves me with major holes in my coverage, and people are still being refused car insurance or facing increased prices for no relevant reason. In looking at accident insurance, would someone with an existing disability be able to find cover as complete, as easily and as cheaply as someone without? I think we all know the answer.

Ross Clark said...

Good Post.

I'd firstly declare my interest as working in the insurance industry. The link between insurance and tort is nicely brought out in what you say.

Injured individuals who get compensation from an insurer following such an accident can end up with awards for future earnings loss, care etc as well as pain suffering and loss of amenity. It enables them to have some dignity and control over their lives. The alternative is a reliance on benefits which sadly remove both.

Newspapers make much of multi-million pound settlements, and their cost (more so when the cost falls on the NHS as a result of clinical negligence). However, the money is allocated for specific matters, and 24-hour care for an individual who is 18, unable to look after him/herself and has a decent life expectancy is ferociously expensive.

Non-fault compensation happens in New Zealand but does have its issues. That said it provides a standard of care that should be a price we are prepared to pay to be classes as a decent society – we have jettisoned the Victorian concept of the ‘deserving poor’, and shouldn’t be replacing it with the ‘deserving injured’.

As to who pays, insurance against liabilities is arguably in this way an indirect tax. If insurers funded such a system our premiums would go up and everyone pays. If the government funds it everyone pays. Economically government funding should be cheaper (insurers are entitled to make a profit) but this assumes that governments work efficiently – they probably don’t. So, in principle it doesn’t matter, but such a system has a price, and we will all pay it.

Lastly, kudos to the lawyers who were prepared to run this case. I’ll bet they did it on a CFA; if the Jackson review comes in next year, then the inability to recover a success fee would mean that the claimant would be under-compensated or, more likely, the case would not have been brought. There will be no legal aid either. Another nail in the coffin of justice.

AJS said...

Actually, that's a bl**dy good idea.

Recognise the possibility that accidents do happen, set up a national fund to compensate the victims of accidents where no party is to blame -- and automatically disqualify anyone who pursues a claim in the courts.

It shouldn't be too expensive to administer, and will cut out a lot of frivolous claims -- I suspect people will be more ready to accept a predetermined amount, than to risk it all in a court of law trying to squeeze a few pounds more out of The System (i.e., ultimately, you and me).