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Personal Injury & Clinical Negligence analysis: The latest article in the ‘Meet the Author’ series includes an interview with Kerris Dale, partner at BLM Law discussing her role and Bingham & Berrymans’ Personal Injury and Motor Claims cases.
I am a partner and head of the Motor Practice Group at insurance risk and commercial law firm, BLM. I am also head of the Cardiff Office and manage a Motor Team in Cardiff. On a day to day basis I manage a caseload of high value and complex RTA claims.
I joined BLM as a partner in 2009 and joined the Motor Practice Group before being appointed the head of the Group in March 2017.
Having a case heard in the Court of Appeal. The sense of occasion and the experience was truly memorable.
In the latest supplement to Bingham & Berrymans’, we explore the impact of recent developments in insurance law and personal injury litigation over the last two years.
The Court of Justice has conclusively ascribed the limits of liability on motor insurers in Smith v  Meade  Meade  FBD Insurance plc  Ireland  Attorney General [C-122/17] (applied by the English courts in Colley v (1) Shuker (2) UK Insurance Ltd (3) Motor Insurers’ Bureau  EWHC 781 (QB)) where insurance policies are written in accordance with domestic legislation but non-compliant with the European system.
Meanwhile, the European court also considered the liability of national guarantee funds in Farrell v Whitty (No 2) [C-413/15], followed domestically in Lewis v  Tindale  Motor Insurers’ Bureau  Secretary of State for Transport  EWCA Civ 909).
The Court of Justice has further clarified how divergences between the European motor insurance regime mandated by the codified Directive 2009/103/EC (Motor Insurance Directive) and domestic legislation implementing it should be reconciled in Línea Directa Aseguradora, S A v Segurcaixa, Sociedad Anónima De Seguros Y Reaseguros [C-100/18] and Sánchez v (1) Bueno Ruiz (2) Zurich Insurance PL (3) Sucursal de España [C-431/18].
The Supreme Court, when faced with a similar set of facts to those in Línea Directa Aseguradora, SA, delivered its own judgment in R&S Pilling (t/a Phoenix Engineering) v UK Insurance Ltd  UKSC 16, seemingly curtailing the concept of ‘use’ of vehicles within the meaning of the UK’s domestic road traffic legislation.
It also delivered judgment in Cameron v Liverpool Victoria Insurance Co Ltd  UKSC 6, holding that unidentified motorists could not properly be sued by reference to a description owing to the insurmountable obstacle of effecting service of legal proceedings. Accordingly, claims must continue to be submitted to the Motor Insurers’ Bureau (MIB) for consideration under the terms of its Untraced Drivers’ Agreements, rather than attempting to (unsuccessfully) sue motor insurers.
With that in mind, all claims made against the MIB, whether under the Uninsured Drivers’ Agreement or the Untraced Drivers’ Agreement, must be submitted electronically only (from 29 June 2020), save for low value personal injury claims regulated by the Pre-Action Protocol (which have their own online portal).
Finally, on 1 November 2019, the Motor Vehicles (Compulsory Insurance) (Miscellaneous Amendments) Regulations 2019, SI 2019/1047 entered force removing the statutory right of motor insurers to pursue a declaration after an index accident endorsing any entitlement to avoid their insurance policies, and any statutory liability potentially attaching. The changes ‘address failures of national law to operate in accordance with EU law’, which has been evident since the Court of Justice’s judgment in Fidelidade-Companhia de Seguros SA [C-287/16].
There has been some clarification of the implications of the UK’s departure from the EU on cross border litigation.
Generally, the approach taken in the European Union (Withdrawal) Act 2018 regarding both directly applicable European law and domestic law based on European measures is to transpose these into domestic law with effect from the end of the implementation period, ie 31 December 2020.
There will, largely, be no material change to the relevant rules for designating the applicable law either in contract or in tort, with the provisions of Regulation (EC) 593/2008, Rome I and Regulation (EC) 864/2007, Rome II largely being incorporated into domestic law.
However, the allocation of jurisdiction between the UK and member states will no longer be governed by Regulation (EU) 1215/2012 Brussels I (recast), instead being subject to the common law rules within the CPR and PD 6B.
The obligations of the Motor Insurers’ Bureau (MIB) as ‘compensation body’ designated under Articles 19–26 of Directive 2009/103/EC, often referred to as the ‘protection of visiting victims scheme’, will cease to have effect in the UK from the end of the implementation period. The result is that UK victims of road traffic accidents in the European Economic Area (EEA) will be required to pursue claims for compensation in the Member State where an accident occurred, rather than being able to make a claim to the UK MIB as compensation body. The UK MIB has sought to enter into bilateral agreements with its EEA counterparts to mitigate the risk to UK claimants of being unable to access compensation, whether in their home courts or even at all.
Perhaps the most notable update is the 8th edition of the Ogden Tables, which was published by the Government Actuary’s Department on 17 July 2020, and marks the first edition since 2017’s change in discount rate.
While multipliers in the 7th edition of the Ogden Tables were calculated using mortality rates from the 2008-based projections, the 8th edition provides multipliers based on mortality rates from the most recent, 2018-based, projections.
In common with other editions, the Table A to D reduction factors (used for discounting loss of earnings and pension loss multipliers for contingencies other than mortality) adjust the raw or baseline multiplier to reflect the average pre- and post-injury contingencies according to employment risks associated with the age, sex, employment status, disability status and educational attainment of a particular claimant. However, the definition of disability, which had, in part, reflected that within the Equality Act 2010, instead references the definition within the Disability Discrimination Act 1995.
The section on fatal accidents has also been updated to reflect the Supreme Court’s decision in Knauer v Ministry of Justice  UKSC 9. Therefore, when assessing the value of future dependency claims brought under the Fatal Accidents Act 1976, all English, Welsh and Northern Irish courts must now apply multipliers calculated from the date of trial rather than from the date of death.
Measures designed to ‘reform the personal injury claims process and disincentivise minor, exaggerated and fraudulent road traffic accident related soft tissue injury claims’ were first announced in November 2015.
On 21 April 2020, the Justice Secretary made a written statement confirming that:
‘…the current COVID-19 pandemic has had an unprecedented impact on the medical, legal and insurance sectors…[such that] we have therefore decided to delay the implementation of the whiplash reform programme to April 2021….’
With automated vehicle technology widely championed as transforming land travel, we anticipate technology to be deployed over the next few years that might enable a human driver to delegate the dynamic driving task to an automated vehicle, rather than merely assisting with the driving task. Undoubtedly, these developments will generate new questions around liability requiring resolution.
I might have considered a position in the Police Force—the National Crime Agency sounds interesting and appeals to my like of forensic details.
The Bingham & Berrymans’ Personal Injury and Motor Claims cases can be found on Lexis®Library here and can be purchased here.
The Bingham and Berrymans’ Personal Injury and Motor Claims cases 1st Supplement to 15th edition can be found here.
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