qbe technical claims brief april 2013
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7/28/2019 QBE Technical Claims Brief April 2013
http://slidepdf.com/reader/full/qbe-technical-claims-brief-april-2013 1/11
QBE European Operations
Technical
claims briefMonthly update | April 2013
7/28/2019 QBE Technical Claims Brief April 2013
http://slidepdf.com/reader/full/qbe-technical-claims-brief-april-2013 2/11
Technicalclaims briefMonthly update | April 2013
News 1
The Jackson reorms take eect
1 April 2013 1
Ministry o Justice claims Portal
extension is go or end o July 2013 2
Consumer Insurance Act comes into
orce 6 April 2013 3
Recoverable NHS charges increase
rom 1 April 2013 4
Irish Courts Bill raises inancial
jurisdictions 5
Record ine or breach o
Health and Saety Legislation 5
Liability 6
60% contributory negligence ound or
employee who ell rom scaolding:
Sharp (By his brother...) v Top Flight
Scaolding Ltd – High Court (2013) 6
Pedestrian suers catastrophic injury
ater pothole trip: Bullock v Homes or
Haringey – Out o Court settlement
approved by High Court (2013) 7
Procedure 8
Judge erred in ignoring documentary
evidence: Goodman v Faber Prest Steel –
Court o Appeal (2013 8
Disclaimer 9
Contents
7/28/2019 QBE Technical Claims Brief April 2013
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1QBE Technical claims brief - April 2013
News
TheJacksonreormstakeefect
1April2013
Ater years o preparation and a great deal
o debate, Lord Justice Jackson’s reorms
o litigation unding in England and Wales
inally took eect rom 1 April 2013.
It is no exaggeration to say that these are
the most signiicant reorms o the civil
justice system since Lord Wool’s reorms
o the Civil Procedure Rules over a decade
ago. Regular readers o this publication will
have seen a great deal o inormation and
commentary on the reorms over the last
three years but we set out below the main
provisions once again or ease o reerence:
• Success ees (a percentage mark up
on base costs) and Ater the Event
(ATE) insurance premiums will no
longer be recoverable by claimants
rom deendants or Conditional Fee
Agreements (CFAs) and ATEs entered
into ater 1 April 2013 (Mesothelioma
claims are excluded rom this reorm at
least or the present)
• Claimants still wishing to enter into a CFA
ater 1 April 2013 can pay the success ee
rom their damages
• Qualiied One Way Costs Shiting (QOCS)
where a successul claimant can recover
their costs but a successul deendant
cannot (unless having made a successul
Part 36 oer and then limited to the value
o the damages award) will come into
eect rom 1 April 2013 provided no CFA
or ATE in orce prior to that date
• Claimants who are ound to be dishonest
will lose QOCs protection
• New Part 36 sanctions will apply where
deendants do not accept a claimant’s
Part 36 oer and the claimant succeedsin obtaining as much or more than the
oer at a hearing. For claims worth up
to £500,000, claimants will receive an
additional 10% on damages plus an
additional 5% on any damages between
£500,000 and £1,000,000. The new
sanction will apply where the claimant
makes an oer ater 1 April 2013
• Awards or general damages will increase
by 10% or Judgments given ater
1 April 2013 provided no CFA is in place
beore then. The Statutory Bereavement
award will also be increased by 10% rom£11,800 to £12,980
• Reerral ees are banned rom 1 April
• Costs Budgeting (early setting o costs
budgets by the court ) will be extended
rom the pilot scheme to all multi-track
cases where proceedings are issued ater
1 April 2013
• Damages Based Agreements (where
costs are determined as a percentage o
damages or past loss) may be entered
into rom 1 April 2013
• The Small Claims Track Limit or non-
injury cases will increase to £10,000
(rom £5,000) or cases issued ater
1 April 2013 ( the Ministry o Justice is
considering an increase the Small Limit
or injury cases).
Many commentators, probably
including Lord Wool himsel, will
say that Jackson has in essence tried
to fnish the work that Wool was not
given time to complete.
The reorms will hopeully, produce
a more reasonable and balanced
costs regime. Some aspects o the
reorms have been bitterly opposed
by claimant lobbies but a situationwhere, as Jackson ound , deendants
in some instances did not run
potentially good deences or ear o
the costs consequences, had to be
addressed.
Whether the reorms succeed in
their stated aim to reduce overall
costs and to achieve a airer balance
o costs between claimants and
deendants but without reducing
access to justice, will only become
clear as cases are set tled over the
coming months and years. Insurersare, or the main part, cautiously
optimistic but with major complex
reorms like these the law o
unintended consequences may all
too easily operate.
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2QBE Technical claims brief - April 2013
MinistryoJusticeClaimsPortal
Extensionisduetogoliveatendo
July2013
In addition to Lord Justice Jackson reorms
the Ministry o Justice is extending its
Claims Portal and introducing a new
system o Predictive Costs or Employer’s
Liability (EL) and Public Liability (PL) claims
which all out o the Portal scheme (exceptsingle employer EL disease cases which will
revert to an hourly rate).
The Portal extension was planned or
1 April 2013 to coincide with the Jackson
reorms. The implementation was
postponed however when the Association
o Personal Injury Lawyers (APIL) and the
Motor Accidents Solicitors Society (MASS)
brought a judicial review arguing that the
Ministry o Justice had ailed to consult
properly.
Long delays in implementation were eared
but the review was heard and rejectedon the 1 March and no appeal was made,
leaving the way clear or implementation o
the extension.
The MOJ opted or a later implementation
date, saying that it wished to give all new
users o the Portal more time to become
amiliar with the processes.
The key elements and timing o the
changes are set out below:
• Existing motor claims portal extended
rom upper limit o £10,000 to £25,000
or accidents on/ater 31 July 2013
• Extension o portal to EL and PL
claims worth up to £25,000 (excluding
Mesothelioma, all PL disease and
multiple employer EL disease claims)
or accidents on or ater 31 July 2013
(where notiied on/ater 31 July or single
employer disease cases)
• Admission o liability or EL claims
required within 30 ‘business days’ (i.e.
working days), 40 or PL or case will drop
out o portal into new predictive
costs regime
• Fixed costs or the EL and PL protocol
are £300 stage 1, £600 up to £10,000
claims value and £1,300 or £10,000 to
£25,000 or stage 2.
For a more detailed guide to the reorms
go to http: //www.qbeeurope.com/risk-
management/technicalclaims.asp
The extension o the Portal process
has been even more controversial
than the Jackson reorms with APIL,
MASS and other claimant lobbies
voicing bitter opposition. According
to the ‘Campaign to Save the Legal
Industry’, up to 100,000 jobs in
the legal proession will be lost as a
combined result o the Jackson and Portal reorms.
Deendants will also ace diculties
in adapting to the changes but or
them they also hold out the prospect
o signifcant costs savings. As with
the Jackson reorms, the Portal
changes are viewed by most insurers
with cautious optimism.
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3QBE Technical claims brief - April 2013
ConsumerInsuranceActcomesinto
orce6April2013The Consumer Insurance (Disclosure and
Representations) Act 2012 comes into
orce in the jurisdictions o England and
Wales, Scotland and Northern Ireland on
6 April 2013.
The Act will abolish the consumer’s
obligation to volunteer material acts
and will require them instead only to
take reasonable care to answer insurers’
questions ully and truthully. I they do
volunteer any inormation, they must
again take reasonable care that it is not
misleading.
An insurer’s remedy under the new Act will
depend on the conduct o the consumer:
• I the misrepresentation was honest and
reasonable, coming about because o
a ailure to understand a badly worded
question or example, the insurer must
pay the claim
• I the misrepresentation was careless,
then the insurer will have a proportionate
remedy: applying exclusions that
would have been stipulated had the
true position been known, paying onlya proportion o the claim i a higher
premium would have been charged or
avoiding the policy, returning premiumsand rejecting all claims i the contract
would not otherwise have been
entered into
• I the misrepresentation was deliberate
or reckless then the insurer may treat
the policy as i it was never incepted
and decline all claims but retaining
the premium unless the consumer
can provide reason why this would be
unreasonable
• The remedies will also apply where an
intermediary acting on the policyholder’s
behal makes misrepresentation. The
Act establishes a statutory code or
determining or whom the intermediary
is acting.
The Act also abolishes ‘basis o contracts’
clauses i.e. preventing a policyholder’s
responses being treated as warranties and
cover not commencing i alse inormation
is given.
The Act prohibits insurers rom including
terms in insurance contracts which impose
more onerous duties o disclosure than set
out in the Act itsel.
The Law Commission website
reports that the Act is intended to
strengthen consumer protection
and confdence in the UK insurance
market and in many areas simply
brings the law into line with
recognised best practice. The Act
should at least bring some clarity to
this complex area o law.
3QBE Technical claims brief - April 2013
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4QBE Technical claims brief - April 2013
RecoverableNHSchargesincreaserom
1April2013
NHS charges will increase rom 1 April 2013
in line with ‘NHS inlation’.
• The charge or out-patient treatment will
rise rom £615 to £627
• The daily rate or in-patient treatment will
rise rom £755 to £770 with the overallin-patient charge cap increasing rom
£45,153 to £46,046.
• Ambulance charges will increase rom
£185 to £189
The table on the right sets out the rates
since 2009.
NHS Treatment
Charge
Accidents
01/4/09 –
31/3/10
Accidents
01/04/10 -
31/03/11
Accidents
01/04/11 -
31/03/12
Accidents
01/04/12 -
31/03/13
Accidents
On or after
01/04/13
Non-admission £566 £585 £600 £615 £627
Daily in-patient rate £695 £719 £737 £755 £770
In-patient charge cap £41,545 £42,999 £44,056 £45,153 £46,046
Ambulance charges £171 £177 £181 £185 £189
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5QBE Technical claims brief - April 2013
IrishCourtsBillraisesnancial
jurisdictionsThe Irish Department o Justice and
Equality has published details o a new Bill,
which will raise the inancial jurisdictions o
the Irish District and Circuit Courts or the
irst time since 1991.
The Courts Bill 2013 will increase the
inancial jurisdiction o the Circuit Court
rom €38,092 to €60,000 or personal
injury cases and to €75,000 or other
actions. The District Court’s jurisdiction will
rise rom €6,384 to €15,000.
In a press release, the Ministry explainedthat the lower existing limits had rendered
the District and Circuit Court ‘redundant’
or some classes o litigation orcing more
cases into the High Court and into a more
expensive costs regime.
The increased limits o jurisdiction would
help to contain costs and avoid inlationary
pressure on insurance premiums.
RecordneorbreachoHealthand
SaetyLegislationAn Irish haulage company Nolan Transport
has been ined a record €1 million and
ordered to pay prosecution costs o
€70,000 ollowing the deaths o two
women struck by metal coils, which had
been inadequately secured to a lorry.
The coils, which weighted ive tonnes,
had each been secured using only three
o six available straps and came o the
lorry whilst it was negotiating a bend. The
women were driving two separate cars at
the time and in addition to the two deaths,
two passengers were seriously injured.
Finding the company guilty o a breach
o section 12 o the Safety Health and
Welfare at Work Act 2005 (which sets
out duties to non-employees), the Judge in
the Wexord Circuit Court criticised Nolan
Transport or a ‘lagrant disregard’ or saety.
The Health and Saety Review has reported
the €1 million ine as the largest ever
imposed on a company o this size.
The levels o insurance premiums,
especially or motor risks, have
been a major concern or Irish
governments or some years.
Like their counterparts in the UK, the
Irish courts will impose heavy fnes
or breaches o Health and Saety
regulations leading to atalities.
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6QBE Technical claims brief - April 2013
Liability
60%contributorynegligenceoundor
employeewhoellromscafolding:
Sharp(Byhisbrother...)vTopFlight
ScafoldingLtd–HighCourt(2013)
The claimant was employed to erect and
dismantle scaolding by the deendant. On
the day o the accident, the claimant was
required to erect scaolding at the rear o a
terraced property with no external
rear access.
The claimant had erected the scaolding
up to the roo o the house but with no
ladders between the dierent levels. It had
not been possible to get a big enough
single ladder through the house to reach
the top o the scaolding so with no other
means o getting o the scaolding, the
claimant was obliged to climb down it.
Whilst attempting this he ell to the ground
landing in the garden o the
adjoining house.
The claimant’s case was that had his
employers carried out a proper risk
assessment and heeded industry guidance
they would have instructed him to use
internal ladders when constructing the
scaolding and the accident would have
been avoided. The deendants countered
that despite the claimant having little ormal
training he was suficiently experiencedto be able to assess the work himsel. The
accident had been caused by his decision
not to use internal ladders and to climb
down the outside o the scaolding, which
he knew to be dangerous.
The court ound that the deendants had
ailed in their common law duty to provide
adequate training and to ensure that the
claimant remained competent. At best,
the claimant had no ormal training since
the 1990s and at worst, none at all. The
reliance o the deendants on the claimant’s
ability to assess the job himsel withouta risk assessment or method statement
was unacceptable. There was a causative
breach o duty and primary liability
was established.
With regard to contributory negligence
however, the court ound that the claimant
had attempted to climb down the outside
o the scaolding. He must have realised
that this exposed him to danger, as did
his decision not to incorporate internal
ladders into the scaolding. He could easilyhave taken these simple precautions. The
claimant was thereore 60% responsible or
the accident.
The high proportion o contributory
negligence ound in this case is
a reminder that the courts may
penalise claimants or not taking
obvious precautions or their own
saety even where their employer’s
conduct has been poor.
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7QBE Technical claims brief - April 2013
Pedestriansuferscatastrophicinjury
aerpotholetrip:BullockvHomes
orHaringey–OutoCourtsettlement
approvedbyHighCourt(2013)
A negotiated settlement or a pedestrian,
who suered catastrophic brain injuries
ater stumbling in a 3-inch deep pothole
and hitting his head, has been approved
by the High Court. The claimant, now 38,had brain surgery and extensive specialist
rehabilitation ollowing the accident but was
unable to return to work and will require
daily care or the remainder o his lie.
Homes or Haringey admitted that they
had not maintained the road to a proper
standard. Liability was agreed on a 72.5% to
27.5% split basis in the claimant’s avour back
in 2008 but agreement on the value o the
claim has only just been reached.
The amount o the settlement has not been
disclosed but given the details reported, this
is probably a multi-million pound claim.
A spokesperson or Homes or Haringeysaid that ollowing the accident they had
introduced a ‘comprehensive maintenance
programme’ on all o their estates with twice-
yearly inspections costing £300,000 a year.
Councils acing budget cuts may be
tempted to reduce maintenance but
claims like this illustrate the dangers
o doing so.
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8QBE Technical claims brief - April 2013
Procedure
Judgeerredinignoringdocumentary
evidence:GoodmanvFaberPrestSteel–CourtoAppeal(2013
The deendant’s lorry collided with the
claimant’s car. The deendant admitted
liability subject to contributory negligence
but disputed that the claimant had suered
any signiicant injury.
The claimant alleged that he suered pain
in his neck, knees and lower back especially
when driving. The opposing medical
experts agreed that had the claimant
suered any genuinely signiicant injury in
the accident he would have experienced
painul symptoms in the ollowing days.
The medical records recorded no such
complaints until many months ater the
accident and the claimant had sent an
e-mail to his manager conirming that he
had not suered any pain or over a month
post accident.
At irst instance, the Judge accepted the
claimant’s verbal evidence that he had
suered painul symptoms immediately
ater the accident despite the absence o
any mention o it in the medical records
and his ailure to explain his contradictory
e-mail under cross-examination.
The deendant company, which was
insured with QBE, appealed saying that the
judge had erred in accepting the
claimant’s evidence.
The Court o Appeal acknowledged that a
trial judge has an important advantage in
hearing a witness’ evidence live but also that
it was dificult or even an experienced judge
to decide only rom a witness’ demeanour
whether they were truthul. Contemporary
documents were oten a valuable guide to
the truth and the trial judge should have
tested the claimant’s evidence against the
medical records and his own e-mail. The
trial judge had ailed to set out any reason
why the claimant’s verbal evidence was to
be preerred and appeared to have been
entirely swayed by it.
The trial judge’s ruling was set aside and a
resh hearing ordered beore a
dierent judge.
8QBE Technical claims brief - March 2013
A common complaint rom insurers
is that judges appear to be too willing
to accept what claimant’s say about
their injuries with little apparent
scrutiny o the medical evidence.
This helpul judgment rom the
Court o Appeal will hopeully
serve as a reminder that judges
must careully weigh all available
evidence.
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9QBE Technical claims brief - April 2013
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4299/TechnicalClaimsBrie/April2013
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a division o the QBE Insurance group. All three companies are authorised and regulated by the Financial Services Authority.
DisclaimerThis publication has been produced by
QBE Insurance (Europe) Ltd (“QIEL”).
QIEL is a company member o the QBE
Insurance Group.
Readership o this publication does not
create an insurer-client, or other business
or legal relationship.
This publication provides inormation
about the law to help you to understand
and manage risk within your organisation.
Legal inormation is not the same as legal
advice. This publication does not purportto provide a deinitive statement o the law
and is not intended to replace, nor may it
be relied upon as a substitute or, speciic
legal or other proessional advice.
QIEL has acted in good aith to provide an
accurate publication. However, QIEL and
the QBE Group do not make any warranties
or representations o any kind about the
contents o this publication, the accuracy or
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or explanations given.
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duty to you, whether in contract, tort, under
statute or otherwise with respect to or in
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inormation contained within it.
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obligation to update this report or any
inormation contained within it.
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or by any other person arising out o or in
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reliance on this publication or on the
inormation contained within it and or any
omissions or inaccuracies.
QBE Insurance (Europe) Limited and
QBE Underwriting Limited are authorised
and regulated by the Financial Services
Authority. QBE Management Services
(UK) Limited and QBE UnderwritingServices (UK) Limited are both Appointed
Representatives o QBE Insurance (Europe)
Limited and QBE Underwriting Limited.
Completed 25 March
2013 – written by and
copy judgments and/or
source material for the
above available fromJohn Tutton (contact no:
01245 272 756, e-mail: john.
tutton@uk.qbe.com).
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