Casualty

We anticipate that claimant representatives will continue to test the waters for occupational and environmental air pollution exposure claims, particularly where illness and/or injury can be clearly evidenced. Research and reporting around the physiological impact of exposure to diesel emissions continues at pace, with recent reports highlighting that toxic air particles are found even in the bodies of unborn babies. Significant hurdles remain for large scale actions, but the judiciary has shown it is prepared to be flexible in assigning responsibility for the consequences of air pollution where local and national regulators were involved. Whether such flexibility will extend to liability in negligence for exposure remains to be seen.

The relative complexity of employers, public liability and occupational disease claims compared to low value motor claims has meant that digital processes have not been as heavily embedded into the conduct of those claims to date. Digitisation of injury claims and litigation has primarily focused on low value motor claims, with simplification directed at systems such as the Official Injury Claims Portal. However, the recent mandatory expansion of the Damages Claims Portal (DCP) represents a significant extension of digitisation to casualty claims and subsequent litigation processes as a whole. We expect the capabilities of the DCP will be increased in the coming months to include further elements of the litigation process. Recent proposals to extend compulsory mediation for lower value actions also highlight the expected direction for the handling of casualty claims in the future.

The seemingly inexorable rising cost of care will continue to impact the cost of casualty claims, particularly for those claimants who are seriously injured. Broadly, we are now seeing that rates of £25-28 per hour being pleaded as the norm for weekday costs. Short to medium term control of these costs remains very difficult as the rates are driven by a range of socio-economic factors, including inflation. A directly employed package could be cheaper in some cases but these are generally not popular because of the additional costs of National Insurance and pension contributions, as well as the higher levels of case management needed to manage the care team. As more claimants base their care claims on agency costs, it is therefore expected that the average cost of care will increase.

One of the key strategic objectives pursued by the Health and Safety Executive (HSE) is to reduce work-related mental health issues and stress. We predict that HSE inspectors will take keen interest in company policies for managing stress in the workplace during future investigations of workplace incidents. Construction sites in particular are now targeted as part of a health inspection initiative supported by the WorkRight Construction campaign. The campaign is raising awareness of health issues in relation to moving and handling materials to improve the long-term health of those working in construction. HSE inspectors will be visiting construction sites to check employers and workers know the risks and plan their work accordingly. Any employers who are not compliant are likely to face at the very least the service of improvement and prohibition notices. We also expect to see progression of objectives such as the launch of an occupational health and safety qualification in prevention and management of work-related stress.

The Fire Safety (England) Regulations 2022 will come into force in January 2023, as part of the overall package of reforms introduced by the Building Safety Act 2022 (BSA). These Regulations will impose significant new legal requirements on owners or those responsible for residential buildings who will need to ensure their fire risk assessment takes account of any risk posed from the external wall systems of the building. Insurers will need to ensure that policyholders are prepared for the significant changes and that planning is underway to ensure compliance with the new regulations, which include things like the provision of wayfinding signage and the routine testing of fire doors. Looking beyond January, most of the regime under the BSA does not yet have full effect and will require secondary legislation. This will see new duty holder and competence requirements on all building work and additional duties for those involved in the design or construction of higher-risk buildings and those who manage these buildings in occupation. There will be new hard stops to strengthen building control for higher-risk buildings before a building is occupied. The new Building Safety Regulator will enforce stronger sanctions for all building work, including potential custodial sentences for individuals and unlimited fines for some duty holders.

Since emerging from the COVID-19 pandemic, there has been a marked change in the profile of claims being made against highway authorities, particularly in relation to cyclist and e-scooter claims. In May 2020, the Department for Transport announced special funding to promote cycling safety schemes, which led to a wide range of activity designed to promote cycling as an alternative means of transport. With such schemes there inevitably comes a change in infrastructure such as newly installed kerbing to create cycle lanes, extended kerbs to narrow road entrances as part of traffic calming measures and newly installed speed bumps. As greater focus is given to encouraging more environmental means of travel and changes are made to the existing infrastructure, there is likely to be an increasing number of claims against highway authorities from cyclists and riders of e-scooters. While changes to infrastructure have always been commonplace, with more cyclists and riders on the highways, there is now a greater risk of accidents occurring and a higher chance of more significant injuries being sustained.

Research shows that the UK saw a rise of more than 1.5mn pets over the course of the pandemic. It comes as no surprise therefore that we anticipate a correlating increase in the number of both first party claims and also liability claims for injuries specifically caused by dogs. First party claims throw open a range of issues for insurers to consider from policy coverage disputes to dual insurance and pet insurance fraud. Those handling third party claims for dog bite injuries will need to focus not only on negligence but breach of statutory duty and claims under the Animals Act 1971, which gives additional protection to those injured by animals.