What can we see from the claims landscape looking ahead to the end of the year? There are common themes that remain at the forefront of an evolving picture.
Highways Act (Amendment) Bill
Pothole claims are the most prevalent claims for local authorities and this trend is not subsiding as long-term investment in highways infrastructure continues to be a challenge for many local authorities.
Additionally, the condition of our highways continues to attract media and political scrutiny, evidenced by the Private Members’ Bill (Highways Act 1980 (Amendment) Bill) proposing to substitute the defence of ‘reasonableness’ with a requirement that a highway authority demonstrates it took ‘all possible steps’ to keep the highways safe.
The tone and substance of the amendment to the above statutory defence are notable. This is not the first occasion Parliament has reacted to national highway challenges or defensibility. If passed, such wording would impose a higher hurdle for the defensibility of highway claims. The wording ‘all possible steps’ is also unusual and concerning.
It remains to be seen if this Bill becomes part of an election campaign, or if the Bill is successful. Most private members’ bills fail. However, it does show the spotlight is on this issue.
Mental Health – the latest
The Health and Safety Executive (HSE) released its annual summary statistics of workplace injuries, and ill health. These reveal continuing high levels of workplace ill health and workplace stress, anxiety and depression, with a rising annual cost to the economy estimated at over £20 billion.
It is notable that 1.8 million workers suffer from work-related ill health (new or longstanding cases) resulting in 31.5 million working days lost. The HSE also reports 875,000 new or longstanding cases of work-related stress, depression or anxiety, which includes 338,000 new cases for 2022/23.
The current ratio is significantly higher than that seen pre-pandemic and is largely attributable to rising levels of workplace stress, anxiety and depression. To quantify this further, the number of new and longstanding cases of workplace stress, depression and anxiety has risen over 14%, accelerated by the pandemic.
The HSE says: 'Stress and poor mental health is the number one cause of work-related ill health…we need all employers to do more and take seriously their responsibilities to support good mental health at work.'
Social care claims
The implications of HXA/YXA in social care and abuse cases means that a duty of care will rarely arise pre care order. While the claimant’s solicitors appear to be somewhat sanguine about this, it does point to a re-focus on Human Rights Act claims and the various thresholds, particularly Article 3. These have insurance implications dependent on whether the claimant seeks to claim for injury or not.
Fraud
The current economic climate continues to fuel the increase in fraudulent claims across all business lines. These are a mixture of organised criminality and those individuals resorting to desperate measures. Successfully tackling fraud remains a key priority, as reported in the Government’s Three Year Economic Crime Plan 2023-2026.
Fraud has increased in recent years, and even though it has fallen following the highs seen during the pandemic, it still accounts for an estimated 41% of all crime experienced by adults in England and Wales in the year ending September 2022. Of those sectors surveyed, one in five businesses had been the victim of fraud.
The Government is committed to cutting fraud and has pledged £100 million over the next three years to tackle fraud. Through its strategy it will:
- Pursue fraudsters, disrupting their activities and bringing them to justice more often and quicker.
- Block frauds at source by dramatically reducing the number of fraud and scam communications that get through to the public.
- Empower people to recognise, avoid, and report frauds and equip them to deal easily and appropriately with fraud that do get through.
- Implement the Economic Crime & Transparency Act 2023 to tackle and reduce the impact of fraud by those who seek to hide behind nefarious business and corporate structures.
COVID-19 – claims and the Inquiry
Although many commentators feared the COVID-19 pandemic would provoke an avalanche of personal injury claims against employers and public bodies, litigation has been sparse. Many claimants have been deterred by the difficulties in establishing causation.
However, it was recently reported in the Law Society Gazette that there is a group action against NHS trusts, registered practices, and any other applicable government bodies for alleged failure to protect frontline health care workers during the pandemic.
The law firm acting for health care worker claimants is working alongside the support group Long Covid Doctors for Action, and while it did not comment on the numbers signed up, they had enquiries from ‘hundreds of potential claimants’.
Bear in mind that the COVID-19 Inquiry is yet to hear evidence in key modules concerning the care sector, education, children and young people and other public services. There is the prospect of further claims, although limitation will be a hurdle to overcome.
Interestingly however, there is as yet no local authority participant in the COVID-19 Inquiry.
