Dear Dean

Just a quick note to thank you all at ALM Training for an extremely informative and enjoyable course. I had been looking for a new career for sometime and had looked at this field for over a year now and I only wish I had made the decision earlier. Still better late than never.

I did speak with *** of Manchester however they lost me over the half interested receptionist whom I was discussing the details with. On arriving at your training centre I was more than relieved after reading some of the letters you had received from ex-*** people.

I feel confident in the knowledge you have given me to be a success in the field of investigation as well as the support you have promised at any time and I look forward to working alongside you for many years to come.

Once again thanks to everyone there.

Regards

Adrian

Health & Safety exposed as a non-priority by some employers

Employees in manufacturing were also exposing their employers to potential prosecution by failing to comply with health and safety legislation, claimed a report from City & Guilds.

The vocational education organisation found that 80% of employees in small and medium sized enterprises (SMEs) believed that up to a quarter of accidents were not reported to line managers.

One in twenty workers had witnessed an injury to the hand or finger – such as cutting or even losing a finger – while in the workplace. The number of major injuries sustained while handling, lifting or carrying, had also increased by 12% in 2004/2005.

In addition, the study found that 14% of workers were “not entirely confident” that their workplace was safe.

‘Collective responsibility’

Lynne Oliver, manufacturing and working practices specialist at City & Guilds, said: “The survey shows that Health & Safety Executive (HSE) guidelines are not always adhered to.

“Safety is the collective responsibility of both employees and businesses and can have serious implications for all involved.”

Almost one in ten employers told City & Guilds that health and safety was important to them, but that it was not a priority – despite the fact that a conviction could cost them their business.

The average fine for an HSE conviction in 2004-2005 was £8,368 and nearly one third (29%) of employers stated that a fine of £8,000 or more could seriously affect their ability to trade, or close the business.

Training needs

The study also revealed that almost half (47%) of employers were unaware of the forthcoming Corporate Manslaughter Bill which, if passed, would provide a more effective sanction for holding companies and other organisations responsible when gross negligence among management had fatal consequences.

On a more positive note, two-thirds of manufacturing SMEs (69%) were taking the initiative to prevent health and safety breaches by offering training to their staff. However, City & Guilds said there was “room for improvement” with 17% expressing a desire for health and safety guidance.

Lynne Oliver added: “Many employers are unaware that they can be fined even in cases where an incident has not taken place. In order to safeguard the wellbeing of employees and future of their business, manufacturing SMEs need to ensure that all employees keep abreast of HSE legislation and are vigilant in the workplace.

“If employees and employers in the manufacturing industry get the training right and share good practice, the whole community in which they work stands to benefit.”

Insurers have reacted angrily to accusations of under paying personal injury claims and have countered by arguing third-party capture helps halt spiralling costs but, as Sam Barrett explains, there are hopes of a truce

Accusations are flying in the personal injury arena. On one side, the claimant legal profession is insisting that liability insurers are under-settling cases where claimants do not have representation and the insurers are ‘dealing direct’. On the other, the insurers are saying that they have to resort to third-party capture to reduce the costs involved with legally represented claims and help safeguard premiums.

Although directly settled claims only make up a small proportion of all third-party claims, they are a growing phenomenon. No industry-wide figures are available, but most insurers say they make up less than 10% of all personal injury claims. “An increasing number of these claims are being settled direct, especially in motor, as it is easier to capture details of the injured party,” says Mike Noonan, head of strategic claims management at QBE.

Matthew Scott, head of liability claims and professional services at Axa, agrees: “We don’t do a lot of cold capture due to the fact that the majority of our business comes through intermediaries, but now that we have acquired Swiftcover, it might become more common,” he explains.

As with any legal case, there is evidence to support both sides’ claims. The legal profession’s evidence was aired at a meeting of the Draft Compensation (Exemptions) Order 2006 committee on 22 January, when Labour MP for south-west Wolverhampton Rob Marris produced evidence of under-settled claims in which the individual was initially not legally represented and dealt directly with the insurer of the wrong-doer.

Massive discrepancies

Of the two examples cited – which Mr Marris conceded at the time were extreme examples – one involved an individual who had been offered a settlement of £5000 when she dealt direct. She then sought legal advice and ended up receiving £150,000. A second case involved an initial offer of £4000, which ended up as a settlement of £165,000, once the individual had taken legal advice.

Mr Marris says: “This is not just insurance companies getting it slightly wrong, because the quantum that would be awarded by a court is more of an art than a science. When they get it wrong by 30 or 40 times, it suggests that something is very wrong.”

Martin Bare, partner at Morrish and Co and president of the Association of Personal Injury Lawyers, which is campaigning for strict guidelines to protect claimants, adds: “In total there were between 20 and 30 examples of cases that were presented to parliament. Whether this is the extent of the problem or just the tip of the iceberg remains to be seen, but I would like to see insurers stop this practice. Third-party capture cannot, in conscience, continue because of the fundamental conflict of interest.”

On the insurance industry’s side, the Association of British Insurers commissioned Frontier Economics last June to undertake research into the outcomes for both legally represented and unrepresented claimants in seeking personal injury compensation.

Using a dataset of more than 100,000 claimants from different insurance companies, Frontier Economics found that the average unrepresented net compensation was £5766 – compared with £5477 for represented net compensation. Additionally, the average length of time it took to settle a claim was shorter for unrepresented claims, taking 503 days compared with 598 for represented claims.

In addition to pointing to this research, the insurers argue that it is not in their interest to under-settle these direct cases. “When we deal direct, we tend to be more generous as we don’t want to be seen to be acting unfairly,” says Graham Gibson, director of claims at Groupama. “Insurers are careful – almost paranoid – about preventing themselves being regarded as acting unfairly.”

More money in the pot

From a financial perspective, it could be argued that without legal costs, insurers can afford to pay slightly more to these claimants. Dominic Clayden, director of technical and liability claims at Norwich Union, stands by the industry’s long-held assertion that costs are disproportionate in injury claims. “Out of every £100, £40 goes in costs. This doesn’t seem fair and ultimately it has to be added on to premiums,” he says.

For his part, Andrew Parker, head of strategic litigation at defendant law firm Beachcroft, believes this ‘simpler’ method of settling claims is good for the market. “These cases are predominantly low value, with the majority of them less than £10,000. You do need to think carefully about whether we need to argue about the value, especially where there’s no disagreement on liability,” he explains.

He believes the claimant lawyers’ protestations regarding under-settlement are simply a smokescreen to divert attention away from the proposals in the Department for Constitutional Affairs’ consultation paper (now the Ministry of Justice) on the reform of the compensation process – which was finally published on 20 April. “The proposals for fixed fees mean that some claimant lawyers stand to lose a lot if they’re brought in,” he adds.

In their defence, insurers also point to the controls they have in place to ensure these unrepresented claimants are dealt with fairly. For example, at Norwich Union details of the injury are entered into a computer, which can then translate it into a financial settlement. And Mr Clayden adds that with cases where the settlement would be above £5000, the insurer will insist on legal representation, although not everyone wants this.

At QBE, this £5000 trigger also comes into play for informing the claimant that they might benefit from legal representation. Mr Noonan adds that the insurer is moving to an assessment model that will automatically screen out claims where there could be issues. “Head and back injuries can become much more complicated, as can ones involving occupational ill health, and we will recommend legal representation in these instances. Similarly, if we feel the individual is vulnerable we’ll also exclude them from direct settlements,” he explains. “This could be the case where the claimant is very young or old, or there are language issues.”

He says that when a settlement is offered QBE provides the claimant with an information pack, which outlines how the figure has been determined. This refers to figures taken from the Judicial Studies Board or relevant case law.

But Tom Jones, partner at Thompsons Solicitors, is unhappy that the individual is left to assess the settlement themselves. “Consumers don’t have the knowledge to assess whether they are being offered a fair settlement. This type of situation only happens once and they have nothing to go on apart from what they’re told,” he says.

Bavita Rai, head of litigation operations at Weightmans, believes there is a need for best practice to be introduced to avoid this situation. “Direct settlement is a natural development. There may be scope for a conflict of interest, but insurers can address this by providing enough information for the injured party to make an informed decision at an early stage,” she says. “We would welcome a tariff or online valuation tool, which can only add to the process by making it more transparent.”

To counter claims of ‘unscrupulous’ practice, insurers also insist that the right to legal representation is reiterated throughout negotiations. “We point out that they have a right to see a solicitor when we deal with them and remind them again of this right when we make an offer, as a solicitor could check their settlement for them,” says Steve Thomas, UK technical claims manager at Zurich.

However, as well as his examples of potential under-settlement, Mr Marris has evidence that the insurers are not always making it clear that the individual has this right. To demonstrate this he produced a letter – at the January committee meeting – from Sainsbury’s Bank that had been sent to a trade union member involved in an accident. This letter stated that, although other parties can arrange medical reports for the third-party claimant, “there are numerous benefits in allowing our trained staff to process your claim”.

Additionally, claimant solicitors are concerned that, even where insurers do flag up the right to legal representation, a conflict of interest can still exist when the insurer recommends a particular legal firm. “I’d question the real independence of firms that are provided with cases by an organisation and then expected to fight that same organisation,” says Mr Jones.

Although it could still attract cries of conflict of interest, one way round this might be to use a resolution service that can provide access to independent advice. For example, Axa uses Inter Resolve to deal with some of its third-party personal injury claims. “I don’t think it’s always necessary to have full representation but the claimant should always have access to independent legal advice, if only to tell them they’re receiving the right settlement,” says Peter Ashdown-Barr, chief executive of Inter Resolve, adding that this would also ensure that the insurer was not accused of foul play.

Another concern for those suspicious of insurers’ motives is the regulatory status of third-party capture as a claims management activity. The Financial Services Authority’s remit does not technically extend to these third- party claimants. “Strictly speaking, the FSA’s rules don’t require us to treat a third party as a customer,” says Mr Scott, “but it does require us to deal fairly and openly with them.”

While insurers are happy with the current situation – pointing to the reputational risk if they do not treat claimants fairly as well as the case of Horry v Tate & Lyle – Bridget Prentice, parliamentary under-secretary of state for constitutional affairs, has pushed this issue forward. At the beginning of the year, she drew the FSA’s attention to insurers’ exemption from DCA regulation for their claims management activities, but confirmed at the January meeting that the FSA has met with claimant representatives on the issue of third-party capture, is aware of the evidence suggesting under-settlement and the allegations of impropriety, and reported that it had said it would consider the evidence before deciding on the need for any additional rules.

So, four months on, what is the financial regulator’s position? Robin Gordon Walker, spokesman for the FSA, does not believe Ms Prentice’s enquiry will result in any changes in the near future. “We will respond in due course, but I can’t see how we could make the changes necessary to address this, especially given the current work we’re undertaking to reduce the regulatory burden,” he explains.

Addressing the issue

Proposals in the DCA’s consultation paper on the reform of the compensation process may help to address this. “The proposals do envisage direct dealing as part of the compensation process,” says Roy Hebburn, divisional claims manager at Allianz Insurance. Indeed, as well as referring to this practice in paragraph 70 (see box below) the consultation paper also includes a proposed claim form for unrepresented claimants.

Speaking from the injured party’s perspective, Mr Bare is also generally pleased with the consultation paper. “It’s good to see it is placing independent legal advice at the centre of the process. Claimants are one-time consumers of personal injury advice and they need it to be independent to be able to make an informed decision,” he says.

So while each side will argue about the finer points of the proposals, both camps agree that it should bring benefits. “It’s been a long time coming and there are still some areas that need work but it should bring some real advantages for the claimant,” says Mr Parker. These advantages should include faster settlements, greater use of rehabilitation, as well as potential cost savings that can be passed on to policyholders in the shape of reduced premiums.

The industry has until 13 July to respond to the DCA’s consultation paper and a further paper outlining the final proposals is expected in September with the new regime expected by Easter next year.

THE DCA’S CONSULTATION PAPER – PARAGRAPH 70 “Where offers are made by defendants/insurers to claimants in person, including those that have made no direct claim, but have been subject to third-party capture, they should be provided with the information needed to enable them to make an informed decision. It is proposed, therefore, that when an offer is made to a claimant in person, he or she should be informed of the set time period in which they can accept or reject the offer and that if the offer is accepted, there can be no further claim. Claimants in person should also be informed of their right to seek independent legal advice from a solicitor or from their trade union if they, or a member of the family, is a trade union member.”

Dear Dean & Lin

Please accept my thanks for the excellent course in accident investigation studies.

I found all aspects of the course to be informative and well constructed.

The elements associated with Road Traffic collisions were enlightening and very interesting. 

Accidents at work is a very complex subject but the instruction given will allow students who have completed the course a sound understanding of investigation procedures and regulations that need to be considered.

I thank you and all your staff for the excellent itinerary and I have no doubt the after course support will also be first class,  I look forward to working with the College in the future.

Yours faithfully

John

A nationwide telephone questionnaire survey of safety managers, funded by HSE, has sought to determine the reasons why too many businesses fail to adequately manage the risks generated by workplace transport movements. It particularly wanted to probe the current level of understanding of workplace transport hazards.

A sample of businesses from 5 major sectors of industry was surveyed, the authors prepared the report, 'Knowledge of workplace transport hazards amongst British businesses', and it was discovered that:

• 28% of the sample stated that they had not performed a risk assessment that considered workplace transport issues;
• 26% of organisations reported that they provided no training for their workplace transport operators;
• 65% of respondents from agriculture, and 32% from construction, offered no training for their operators; and
• 57% of respondents were unaware of HSE's workplace transport safety initiative.

Dean,

Thought it might be appropriate to give you a quick update on my situation and to thank you for all your help. Basically I am snowed under with work! I’m working for 4 different companies, 2 of which were due to your emails. Just thought you might occasionally like to hear of success stories, due to your course and training. If you ever need an assistant down my way on a seminar session I would be pleased to tell of my success and the value of your training.

Regards

David

Dean,

Just a quick message to let you know how thing are going on!

I am now a QSE Co-Coordinator for an international wind turbine company, covering the UK and Ireland (Working from home; £30K; company jeep; etc!)

Apart from being responsible for risk assessments, method statements, work procedures and site audits I am also their only Accident Investigator.

I have already had to investigate several accidents around the country such as manual handling and trip-and -fall accidents.

The biggest challenge I have found is that I have to take into account 'corporate ideals' when completing reports (budgets, manpower availability, etc). I was also surprised to find that not one other person in this industry has the training I received from yourselves, in any form!

Maybe you should place an advert in the IOSH magazine aimed at H&S professionals!!

Anyway a big Thank You for the course, I wouldn't have got the job without it!

If I am ever round your way I will pop in to say hello.

Take care now,

Tim