BIBA response to the Consultation on the definition of “Significant Personal Injury” under the 5th Motor Insurance Directive (2005/14/EC)
3rd July 2009
The British Insurance Brokers’ Association (BIBA) is the UK’s leading general insurance organisation representing the interests of insurance brokers, intermediaries and their customers.
BIBA membership includes 1700 regulated firms. Insurance brokers and intermediaries distribute nearly two-thirds of all UK general insurance. In 2007, insurance brokers and intermediaries generated £1.5 billion of invisible earnings and they introduce £22 billion of premium income into London’s insurance market each year.
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BIBA members provide professional advice to businesses and consumers, playing a key role in identification, measurement, management, control and transfer of risk. They negotiate appropriate insurance protection tailored to individual needs and operate to a very high standard of customer service with the aim of ensuring peace of mind, security, financial protection and the professional advice required.
Our responses to the 5 questions set out are as follows:
1. The Department’s aim is to balance the need to compensate in genuine cases with the need to prevent fraud, and that compensation for property damage claims should be appropriately and proportionally targeted.
Are there general considerations which you feel the Department has not taken into account. If so what are they and in what ways should they be taken into account?
We do not disagree with the departments aim as set out in question 1. However, we believe the definition needs to be extended to make it clear that cases where fatalities have arisen are included as well as significant injury.
The proposals do not necessarily restrict compensation for property damage claims to the person(s) suffering the significant injury. Perhaps more thought needs to be given to incidents involving cases where non-injured parties submit claims for damage to property, as this is where potentially fraudulent claims are more likely to arise.
2. The Department intends to link “significant personal injury” to evidence that a stay in hospital has occurred, on the basis that those requiring hospitalisation
are likely to be the most seriously injured.
Do you agree? If not, then what alternatives which meet the Department’s criteria would you suggest?
In the main, we do not disagree that hospitalisation would normally indicate the more serious of injuries. However, the period of hospitalisation should not be the sole factor in determining significant as there are many reasons for an individual to have an extended stay, such as infections, existing medical condition, etc.
It is also unlikely there could be many fraudulent claims for property damage where a person requires a 5 or more day stay in hospital. However, potential fraud might still be a problem in cases where the circumstances of the incident are unclear and someone other than the injured party claims to have suffered damage to property as a result of the same incident.
As in Q1 above, the question of fatally injured victims also needs to be considered.
3. The Department intends to define “significant personal injury” to a stay in hospital and that such stay would be 6 days or more.
Do you agree that this is the appropriate number of days? If not, then what do you consider to be appropriate and why?
We do not agree. Any injury requiring in-treatment for a period of 3 days or more (non continuous) should be regarded as significant and be sufficient for associated property damage claims to be met.
Hospitals are overstretched and look to return people home at the earliest opportunity. Only very serious injury victims are likely to be kept in hospital for six days or more and such a requirement would disqualify a good number of genuine victims for associated property damage.
The length of time in hospital may be influenced by the frailty, health or personal circumstances of the claimant; conversely, a bed may not be available. For this reason BIBA would not suggest a payment for property damage be triggered solely by length of stay.
There are many grey areas where an initial two or three day hospital visit may then require further surgery and additional stays in hospital , in these circumstances the aggregate time in hospital should be counted as opposed to the continuous time.
Again, cases involving fatalities should be taken into account.
4. The Department proposes that the applicable length of treatment should be continuous.
Are there circumstances where you believe there should be more flexibility? If so what would they be and what would you propose as an alternative in these circumstances?
Historically there have been many cases where the initial stay was to assess and make safe e.g. break or a bleed, but then a subsequent return to hospital (or a different hospital) for an operation was not initially possible could result in a stay for over 6 days. So the decision should not be made purely on the “first contact” with a hospital where an initial assessment is made, but instead should be based on the overall time spent in hospital (not continuously) over a period of say 30 days.
5. The Department intends that the definition for “significant personal injury” will be 6 days or more continuous treatment in hospital and that the treatment should occur within 48 hours following the accident.
Are there circumstances where you consider greater flexibility is required between the time of the accident and that of the continuous stay in hospital?
If so, what are these circumstances, and how would you propose to specify greater flexibility to accommodate these circumstances in the most appropriate way?
The majority of significant injuries will result in immediate transfer to hospital from the scene of the accident. Some leeway is perhaps required however to allow for late developing symptoms and a 30 day period seems proportionate.
Where transfer to hospital is not from the scene of the incident, the police incident report should be used as a means of confirming the subsequent injury was a result of the incident in question. Also, the medical examination should confirm that the injury is consistent with the circumstances of the incident as recorded by the Police. Evidence gathering at the scene will play a key part in avoiding potentially fraudulent damage claims submitted by persons other than those suffering personal injury.
BIBA agree that the treatment should occur within a specified amount of time but there are examples where the patient required a specific expert/consultant and it was three or four days before they were actually admitted for their examination and/or operation.
There are also incidents where the accident has been abroad and the initial stay was in the foreign hospital but they were subsequently flown home a few days later. There are also likely to be cases involving blood clots developing after the incident as well as cases of people having to go back later e.g. to have leg pinned as well as cases of misdiagnosis that should not be disqualified because of a prescriptive description.
Ultimately BIBA suggest a combination of triggers:
Hospitalisation of at least 3 days within 30 days of the incident (non continuous).
Thank you for taking the time to consider our response. If you have any further queries please contact Graeme Trudgill, BIBA’s Technical and Corporate Affairs Executive for further information on 02073970218 or on [email protected] or Steve Foulsham, BIBA’s Technical Services Manager on 02073970234 or [email protected] or Peter Staddon, Head of Technical Services on 02073970204 or [email protected]
Direct Tel: 020 7397 0201
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