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The impact of COVID-19 on Personal Injury Claims in Scotland

As we entered into 2020 few of us could have predicted that COVID-19 would sweep the globe as rapidly as it has done and that the impact on so many would be so severe.

The pandemic has affected everyone across all walks of life in a variety of ways. In the personal injury world COVID-19 has undoubtedly led to slower progress being made across the claims landscape generally. At a high level this impacts on life cycle and generally the longer the life cycle, the more a claim will cost.

Although new claims numbers have dipped across the board, we anticipate an influx of claims which will arise as a result of the pandemic.

We will be releasing a series of articles, webinars and podcasts in relation to claims arising from the COVID pandemic however this article looks at the impact on personal injury claims so far and how it is likely to affect those claims going forward.

Litigated Claims

Most litigated claims have been subject to some form of delay ranging from simple variations of the previously timetabled dates to Proofs having to be discharged and re-assigned.

Since lockdown commenced in March, the Scottish court system has been operating on a significantly reduced basis although the first Inner House (appeal court) virtual court hearing took place in April.

That hearing involved legal submissions only however the first Outer House Proof (Trial) at which all witnesses will give evidence remotely is scheduled to take place at the beginning of June.

Feedback from solicitor advocates in our team appearing at some of these virtual hearings is that they have worked well.

Whether or not a case involving witness evidence is suitable for being conducted virtually will depend on a number of factors including the complexity of the case, the number of witnesses involved and the particular points that are in dispute.

For example, where the case is likely to turn on the credibility and/or reliability of a particular witness, parties may prefer for the judge to hear evidence from that witness in person but there will be many cases where virtual hearings could and should be used.

In the All Scotland Personal Injury Court (ASPIC) Proofs scheduled to take place until the end of July have been put on hold and no jury trials will be held until further notice.

It is anticipated however that the successful introduction of virtual court technology in the Court of Session will also be rolled out in the personal injury court.

Only ten "hub" Sheriff Courts remain open to deal with urgent and/or essential civil and criminal business which is conducted remotely or by telephone. Cases involving legal submissions have indeed been able to proceed and again if the use of virtual technology is successful in the Court of Session there is no reason why cases involving the requirement for witness evidence cannot be conducted remotely in the Sheriff Courts too.

Experts

Medical practitioners have played and will continue to play a key role in the response to the COVID-19 pandemic. This has had a knock-on effect on personal injury claims for several reasons.

Experts who would normally carry out personal injury work have understandably had to prioritise NHS over medico-legal work. The wait for those experts who already had lengthy waiting lists is likely to increase as a result.

Even those experts with capacity to undertake medico-legal work have been unable to meet with and examine pursuers (claimants) due to lockdown and the social distancing measures that are in place.

Video Conferencing

Many experts have adapted and are able to offer "examination" by way of video conferencing. This can also be supplemented by experts being provided with video footage of the pursuer carrying out various activities which would normally be observed directly in the examination room.

There are limitations however and video conferencing will not be appropriate in every case.

In straightforward injury claims a report based on a video examination might suffice whereas in more complicated claims whilst a video examination may be a useful starting point the preference would be for the expert to physically meet with and examine the injured party to firm up on the opinion/s expressed and to add weight to the expert's opinion if the expert ultimately requires to give evidence in court.

The use of video conferencing can also be particularly difficult in the context of psychiatric injuries where the injured party is already feeling distressed and may not feel comfortable speaking about such sensitive issues by way of a video link.

They may feel uncomfortable doing so at home, during lockdown, with other family members, children etc in the household.

Conversely there are other considerations for those who live alone. Any psychiatrist or psychologist must carefully consider the benefit of proceeding with a consultation with the risk of a patient having an adverse emotional reaction if they have no support system in place at home and at a time where there is increased demand on the emergency medical resources available as a result of the pandemic.

The same situation applies with other expert witnesses where, for example, a site inspection or the inspection of a particular piece of equipment might be required but cannot be undertaken at present.

Similarly, other experts such as care and vocational experts are unable to carry out face to face meetings and whilst there is scope for appointments to take place in a virtual space for the reasons given above this will not be suitable in every case.

Rehabilitation

Early intervention is often key. At the moment, access to rehabilitation whether that be for the purposes of the Independent Needs Assessment, visits by case managers or access to treatment have all been curtailed to some extent.

There is also the issue of the continuity of treatment to obtain best results which has undoubtedly been impacted by the pandemic.

Many "non-essential" medical treatments have been cancelled or postponed which may lead to a delay in recovery times and the effectiveness of the treatment when it is finally able to take place.

Catastrophic Injury Claims

For the most severely injured pursuers there are additional issues to consider which will have an impact on both settlement and reserve.

The largest head of claim is generally the cost of care. The role of the NHS and local authority provision plays a significant part in this.

With resources stretched in both the public and private sector the cost of care is likely to increase. There is likely to be greater demand for agency care both in terms of temporary care where existing carers and family members need to self-isolate or cannot work due to illness.

The flip side of this is of course that family members may require to take on more of the care themselves if there is a shortage in the amount of private care that is available.

We may see more Periodical Payment Orders (PPOs) being preferred by way of settlement over lump sum awards given the volatility we have seen in the stock market.

Impact on Employment

COVID-19 has, and will, continue to impact on the labour market. This could serve to reduce the value of claims in certain circumstances not only in terms of the claim for wage loss but also the knock-on impact. For example, if a pursuer has less income to go on holiday any claim for paid assistance during any holidays would reduce.

A full analysis of the injured parties' employment and how it has been impacted by COVID-19 will require to be carried out.

There will be issues of furlough, redundancy and other cost cutting measures such as salary reduction, pay freezes and unpaid leave to be considered. Vocational evidence will also be required to consider the medium to long term impact on whichever employment sector a pursuer works in.

Potential Solutions

Improvise, adapt and overcome! All sectors including the courts, medical experts and care providers are working hard to look at what can be done remotely and safely whilst maintaining the principles of social distancing.

In practice, personal injury practitioners are also doing as much as they can to progress claims despite the novel challenges that COVID-19 has introduced. Hopefully a positive to take from the pandemic will be a long-term change for the better in terms of the use of technology in a litigation context.

In the meantime, co-operation and collaboration between parties is key.

We have seen formal cross-industry collaboration e.g. between the ABI and APIL to agree that no limitation defence will be raised in respect of personal injury claims for damages which would otherwise “time bar” between 30 March 2020 and 20 May 2020 (under Prescription and Limitation (Scotland) Act 1973).

On a case by case basis collaboration might include, for example, disclosure of information such as medical and wage records being arranged by way of mandate as opposed to specification of documents, earlier exchange of medical reports including reports from treating practitioners which may allow a narrowing of the issues that are in dispute and/or allow settlement to be achieved.

Parties have still been able to conduct pre-trial meetings and settlement negotiations by virtual means.

A pro-active and co-operative approach is to be commended on both sides of the fence as ultimately it assists both pursuers and defenders alike.

In every case there will be points that ought to be capable of agreement and experienced practitioners should be able to identify and narrow the issues to those that are truly contentious.

Adopting such an approach should ultimately save time and money for both parties and lead to cases being resolved sooner than COVID-19 might otherwise allow.

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