24 February 2003
The never-ending saga over the interpretation of the conditional fee arrangements (CFA) framework highlights the fierce attack being waged by insurers against accident victims and their lawyers. We can see through the legal prism of PI the true power relations that exist between the large insurance companies and individual accident victims, and the imperative of multinational insurance companies to maintain and increase their profits from this multibillion-dollar industry.
The debate is being influenced more by media reports about ambulance-chasing claims management companies and greedy lawyers than hard facts. The recent report from the Institute of Actuaries, which purports to show that the UK has a mature 'compensation culture', is about as credible as a briefing from Donald Rumsfeld on the threat from Iraq. Influencing public opinion appears to be the priority for insurance companies. The public interest is now in making sure that 'our' premiums are not rising due to compensation claims. The 'public interest', naturally, is where the insurance industry and big business would like to see it - with restrictions on tort law and damages and the curtailing of legal costs.
This debate is also raging in the US, where insurers, through powerful lobby groups and in response to asbestos and medical negligence claims, are attempting to restrict hard-won rights for PI victims. As the president of the Association of Trial Lawyers of America recently remarked: "We are at war." What is missing from the media propaganda are facts. There are more people in the UK dying from industrial diseases than from HIV. Last year alone, 295 died in workplace accidents with the majority of deaths taking place in specific sectors, particularly the construction industry. The Health and Safety Executive's annual report makes depressing reading because the pattern of injury and occupational disease has not markedly changed in the past 10 years. The reality - perhaps uncomfortable to many - is that it is still cheaper to kill or maim workers in the UK than it is to improve safety. As David Bergmann showed in a seminal study, 'The Perfect Crime' (1994), there was and is a systematic failure on the part of state agencies to investigate workplace deaths. It is more disturbing when we know that in most instances accidents can be prevented by management action through investment in safety. The promised land of accountability through corporate killing legislation appears to be a million miles away.
We even hear from the insurance industry, through the weighty Data Monitor Report for 2002, that claims have in the past year been declining; we know from figures produced by the Lord Chancellor's Department that there has in recent times been a massive reduction in issued cases, but still we are told that we have an inexorable rise in compensation claims.
Arguably, the Woolf reforms, which have 'delegalised' PI law by promoting early settlement with the use of protocols and mediation, may have paradoxically made things worse: as one early study demonstrated, the 'haves' usually come out ahead when there is no judicial process, because there is no economic equality between the parties. If we throw in the uncertainties associated with CFA funding, we can see that we are left with a system that reduces, rather than increases, access to justice. It is no wonder that there are few pioneering lawyers who are prepared to fight for the rights of accident victims - witness for example the remarkable spectacle of a small number of UK lawyers who were prepared take on the big tobacco companies.
Until we see accident victims as consumers with rights, which should be protected from abuse by large corporations and insurers and actively championed by lawyers, little will change. While many commentators are critical of the US legal system for the proliferation of claims and awards, we do see a greater commercial imperative for reducing accident rates. Perhaps it is time we joined forces with our North Atlantic cousins and waged war together in the interests of accident victims and consumers for global justice.
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