A state of flux

For personal injury (PI) practitioners, dynamism is one of the features which makes this such a fulfilling field to work in. The work follows a constant ebb and flow of patterns and trends – from the boom and wane of asbestos-related cases, to the rapid spike in noise-induced hearing loss claims, to the recent resurgence of interest in vicarious liability. The world of PI often acts as a microcosm of broader market and societal changes, mapping developments and drawing out issues. It’s no surprise, then, that the pervasive and rapid changes inflicted on our daily lives over the last few years have been mirrored, magnified and mulled over in the personal injury arena, and the fallout is of primary concern to in-house legal teams, particularly in the insurance sector.

For two years, the effects of the Covid-19 crisis on the structure of our professional and personal lives were stark; as travel decreased to an unprecedented minimum, the age of working from home (WFH) – or bearing the responsibilities of being labelled a ‘key worker’ – dawned. Even now, when the peak of the pandemic appears to be retreating into the past, the workplace remains radically altered. With such dramatic developments afoot, in Spring 2020 the PI market braced itself for significant ramifications. Subsequent years, however, were perhaps initially more notable for the repercussions that were not seen than for those which were. For Howard Watson, partner at Herbert Smith Freehills, the sense of expectation followed by a lack of immediate fallout that characterised much of the PI market throughout 2020 and 2021 was reminiscent of the unfulfilled dire predictions that abounded at the turn of the millennium.

Employers’ liability

Despite the recognisable potential for a spate of employers’ liability (EL) claims arising from contraction of Covid-19 in the workplace, relating to key workers, stress claims or those compelled to face months of enforced isolation while working from home, volumes of PI work were not markedly enhanced. In the former area, causation proved too great a hurdle to overcome. For the latter type of case also, the anticipated flood of claimants was stemmed by the need to successfully demonstrate not only a feeling of isolation, anxiety or dissociation on the part of employee, but also clear negligence on the part of employers.

Gradually, however, the ramifications which WFH, flexible working and a return to the workplace are having on EL claims have taken shape; rather than a tidal wave of Covid-contraction or stress cases, the market has been seeing a slow revelation of more tangential trends. As hybrid working seems set to dominate the post-pandemic reality of office life, traditional routes of injury – RTAs, slips and trips, and other such occurrences – remain relatively low. In PI, however, a dip in one type of claim usually means there is not far to look for a corresponding peak elsewhere. In the words of 2 Temple Gardens’ Helen Bell, who specialises in cases at the intersection of employment and personal injury: ‘My feeling is that although there might be fewer “falling from ladder”-type EL claims, these will be replaced by different types of claims, potentially relating to repetitive strain injury, chronic pain and stress at work.’ As employees and employers alike adjust to the balance between the virtual and physical workplace, new risks have emerged. For employers, comprehensive risk assessments have become even more vital in the fight to mitigate potential liability; where previously responsibility typically ended at the office door, remote workspaces are now subject to the same EL claims as their on-site counterparts.

In addition, the en masse return to in-person workspaces, even on a flexible basis, has put further pressure on employers. Where many employees are returning after a two-year hiatus, safe working practices will need to be rigorously enforced. Continually changing Covid-19 regulations necessitate a corresponding willingness by employers to monitor and update health and safety protocols at a similarly brisk pace. There is ongoing uncertainty as to the treatment that long-term musculoskeletal or psychological injuries caused by working conditions during the height of the pandemic will receive, as well as the looming question of whether Covid-19 itself will be formally recognised as an occupational disease. Although stress-at-work claims have remained at a more stable level than might have been initially expected, due to the relatively high threshold for negligent behaviour by employers, there is still scope for this to change. As Peter Forshaw, casualty lead at Weightmans, points out: ‘It is vital that with staff continuing to work from home on a regular basis, levels of engagement with all staff are maintained, and especially that any comments raised or concerns flagged in relation to such engagement are acted upon by an employer – failure to do so will render a successful claim virtually inevitable.’ All of these areas are ripe for potential personal injury litigation – although whether claimant firms will be able to run these successfully is still a matter for speculation.

Boxing clever

The pandemic, then, has precipitated a time of marked change in the personal injury market; while traditional volume claims have seen a significant dip, and potential new issues have only recently begun to emerge, this is currently an area characterised by much uncertainty. With further changes to fixed recoverable costs imminent, and likely outcomes of novel types of claim yet to be established, practitioners at BLM are urging for a judicious approach to the pursuit of claims; Michelle Penn, who heads up the firm’s occupational disease department, is clear that ‘claimants will have to be very careful about the cases they pursue’, while partner Edward Sainsbury likewise suggests that ‘defendants will have to box clever going forward and really choose the right battles’.

For claimant specialists, the necessity of a shrewd approach and prudent business model has been the reality for quite some time, with the most recent developments marking simply the latest in a chain of pressures, from gradual FRC extension to the Whiplash Reforms of 2021. While many smaller firms have already been squeezed out of the market, even major players are finding themselves forced to consider their mode of operation carefully; large-scale class actions and product liability cases offer more predictability, and there is consequently a pivot in these directions.

Despite the uncertainty hanging over PI, then, there are already early indications of increased willingness by claimants to pursue cases; as the cost of living rises, so too does enthusiasm for litigation. Given Forshaw’s insight that ‘a safety-first approach instilled by the risks of contracting Covid-19 remains embedded in the psyche of the population’, and the creeping effect of inflation on damages awards, defendants and insurers would be forgiven for fearing that one successful outcome may open the floodgates for a whole spate of novel cases.

Insurers, in fact, have latterly been facing a somewhat different state of play than defendant PI firms. The broadening of areas in which liability cover was not necessary brought about by the pandemic has led to an effect that Sainsbury characterises as ‘insurers having somewhat less skin in the game’. This is particularly true in the public liability (PL) market, which has seen reprieves for several institutions, most notably those in the care sector. This field, then, is becoming one of the most complicated battlegrounds to navigate – the team at BLM anticipates that many of the key disputes of the next few years will be played out on the PL, just as much as on the EL, stage. As the unprecedented arrangement of daily lives and consequently lenient approach towards liability that characterised 2020 and 2021 gives way to a ‘new normal’, however, and insurers are forced to confront a roster of potential novel issues, Bell suggests that ‘insurers will need to guard carefully against these emerging types of EL claim’.

There can be no doubt that the personal injury market, while naturally well hedged for a constant state of flux, has been plunged into a period of unpredictability of late. Claimant firms are trapped between bread-and-butter volume cases that are fast becoming financially untenable, and complex novel mandates for which processes have not yet been established. Defendants, meanwhile, are facing a potential wave of uncharted claims amid a withdrawal of insurers from the field of play. Despite this unsettled situation, however, the natural buoyancy of PI is likely to come to the fore once again – particularly at the top end of the market. In the complex fields of speculative class actions and vicarious liability claims, for example, business has remained brisk for law firms; the upwards trend in the latter, set in motion by the WM Morrisons Supermarkets plc v Various Claimants case, shows no signs of abating, with litigation often reaching appellate level.

With a cost of living crisis looming, and the direction of travel in respect of Covid-related claims yet to be decided, there is plenty of scope for high-stakes, high-value litigation and there are challenging disputes ahead for employers and insurers. The landscape is best summarised by seasoned 2 Temple Gardens personal injury barrister Anastasia Karseras: ‘It won’t ever stop, it’ll just change’.