Ambulance chasers, ‘PH’ drivers, clogged courts

An article appeared in the Sunday edition of Newsday with the headline — “Motor injury claims open for abuse — Dr Toby” and it was reported that these sentiments were expressed at a recent workshop dealing with claims management with particular reference to motor accidents. Firstly, since I was not present I could only assume that Dr Toby was correctly quoted.  Nonetheless, one could hardly fault his views as reported.

He acknowledged that there was a lot of room for abuse and that there was a need for standards in the insurance industry. With more effective investigations, there would be a reduced incidence of fraudulent claims and that would lead to speedier payment of legitimate claims. There was a recommendation that claims handlers should be better trained and exposed to medical terms and jargon and that would improve their case management strategy which would ultimately redound to the benefit of the public. The insurance industry would do well to take the recommendations to heart and to seek out ways to improve their service. However, the whole issue of claims settlement in particular for third party personal injury is very complex. The legal system and the administration of justice serve to delay, frustrate and enrich lawyers and the “ambulance chasers” rather than to compensate and provide relief to those who should genuinely benefit from an unfortunate accident. 

The first issue following an accident is the determination of who is right and who is wrong. This will depend on the facts and whether there are independent witnesses to corroborate evidence. In our society, there are many instances where some people want to be wrong and strong and to even assert that they are right when all the evidence is against them. These are the ones that often prove very difficult to reason with and they would continue to maintain their position. Most accidents are not clear-cut and there is usually a degree of contributory negligence and, while there are many instances when insurers of the parties involved in the accident will agree between themselves the apportionment of blame, there are often times when no consensus can be reached and the matter has to be resolved in the Courts. This is where the difficulty lies!

The Court system is clogged with so many cases involving the determination of liability and the matter then becomes a lottery. There are certain insurance companies that clearly understand the system and although their insured is wrong they are able to come out victorious because witnesses do not turn up as they cannot be bothered or, the plaintiff does not appear and it is the wrong party that wins. That is the reality in Trinidad and Tobago. Many a time there is no such thing as justice but only a chance at justice which then makes people cynical about the entire legal system. In personal injury claims, it is true that there is far too much delay in the injured party receiving a fair settlement. This is where the “ambulance chasers” come in and virtually take over matters promising the injured person settlement that many a time is far too optimistic or exaggerated, and therefore expectations of a windfall rises and a reasonable negotiated settlement becomes elusive. The insurance company is then forced to defend the matter and incurs costs that could be mitigated or avoided.  Within recent times, the international insurance and reinsurance markets have been expressing concerns over  settlements and, the high legal costs and the consequences of these combined will ultimately be reflected in higher insurance premiums and greater scrutiny of claims documents. Unlike the United States, there are no jury awards. Damages must be assessed and there are decided cases and legal precedents and, monetary figures are then placed to these assessments.

In the first instance, medical practitioners determine the extent of disability. Some may say that the assessment is subjective and again this is subject to challenge. In other developed societies, experts are introduced in Court and findings and, or assessments of the degree of disability can be challenged but this rarely happens in Trinidad and Tobago, and this is where exemplars must emerge so their findings can be beyond reproach. When legal opinions are sought on any given matter, the public might be surprised to learn of  the great disparity in the quantification of the claim from respected attorneys. In view of the adversarial legal system, the public is left to wonder who is right and who is wrong, since usually there is no middle ground by the parties. In the final analysis, the insurance company has to make a decision on the degree of liability and weigh up the options in terms of whether it makes economic sense to resist a claim, and the demand of an inordinately high settlement and the costs involved.

A number of insurance companies might take the view that it is cheaper to settle out of Court even if the claim is exaggerated and fraudulent, than to defend the matter in Court when there is very little sympathy. As a result the insurance company is seen worldwide as having a “deep-pocket”. We live in a society in which the incidence of fraudulent claims is high. The public at large sees nothing wrong in defrauding the insurance company. In the UK for instance, fraud accounts for at least 7% of all claims payout but it is likely to be considerably higher here in Trinidad and Tobago because of our “culture”. Think about the PH driver with the unauthorized use of the motor vehicle who gets into an accident, and all the passengers are his friends!; the repairer who thinks nothing of padding and inflating the estimate because the insurance company is paying; the attorney who encourages the injured person to press for an unreasonable settlement in order to earn fees; the medical practitioner who assesses a higher degree of disability than is warranted; the insurance company that has no valid reason for not paying a legitimate claim but delays hoping that it will go away. That is the system under which we operate and that is the reality.
We could only work to improve the system and, the exhortation of Dr Toby is timely and well founded. e-mail: daquing@cablenett.net