The publication of "How to Reduce the Re-Traumatisation of Claimants in Medico-Legal Litigation Claims" by Holly M King and William Latimer-Sayer KC has certainly stirred the pot. Released in January 2025, this paper, spearheaded by rehabilitation physiotherapist Holly M King and barrister William Latimer-Sayer KC, delves into the psychological repercussions of claimants being subjected to unnecessary questions by experts about the index accident, highlighting the risk of re-traumatisation. (link to the article here.)
The necessity of these questions is a matter of perspective. For defendants, such inquiries are often crucial for building a causation or quantum defence. The ongoing 'fact check' regarding the accident, injury details, and relevant medical history is seen as a vital tool for defence lawyers, particularly in identifying inconsistencies in evidence.
The paper is supported by a group of well-regarded legal, medico-legal, and academic professionals. It emphasises the psychological and emotional toll of medico-legal claims on claimants, focusing primarily on catastrophic claims, though it does not specify a starting value for what should be included. The experts propose a five-point plan outlining how instructions should be given and what should be asked (or avoided) during medico-legal examinations.
Not all recommendations are detrimental to defendants. The first proposal advocates for detailed solicitor instructions regarding the claimant's traumatic injuries, including up-to-date medical records and witness statements, to avoid unnecessary questions. While improving the quality of instructions is beneficial, agreeing on the severity of the accident and injury descriptions with the opposing party would surely be necessary prior to sending instructions if the expert isn't going to question the Claimant on the accident itself. Defendants often face challenges as claimants obtain unilateral medical reports in the initial years, with defendants waiting until proceedings are issued. If experts are restricted from asking background questions during examinations, a compromise on the accident description and relevant medical history wording is necessary.
The second proposal suggests that experts thoroughly review instructions and records before the examination to eliminate the need for follow-up questions. Although experts are already obligated to do so, this reiteration could reduce the need for Part 35 questions. The remaining proposals focus on limiting the expert's questions to the claimant during consultations, avoiding inquiries about the period 'preceding, during, or immediately after' the injuries unless necessary. This raises questions about the sufficiency of detail, whether it should be included in witness statements or solicitor instructions, and how to handle discrepancies between the claimant's and defendant's recollections. The working group's stance on other defendant tactics, such as Part 18 questions, which might also be distressing, remains to be seen, potentially leading to satellite litigation.
For the proposal to succeed, clear guidelines on the scope of applicable cases are essential. The article mentions CAT cases, but would a value cap be necessary, and if so, where would it be set? The Serious Injury Guide suggests a threshold of £250,000 and above. Liability disputes, causation disputes, and fraud allegations would need exclusion. Additionally, there is a risk of these guidelines extending to lower-value cases. The cost implications and potential sanctions for raising these issues must be considered. Finally, the location of the agreed 'code'—whether as an annex to the SIG or within the Civil Procedure Rules, Practice Directions, or Pre-Action Protocols—needs clarification.
Improving the quality of low value medico-legal reports
Psychological Injuries in the UK – what do the statistics say?
The Spring Statement from the Chancellor brought benefit cuts, including to the Personal Independence Payment (PIP). The government has released information as background to these cuts, showing that PIP claims have significantly increased since the Covid-19 outbreak. Overall, spending on health-related benefits has risen from £36 billion in 2019-20 to £48 billion last year. Disability-related spending has increased by 45%, primarily due to the number of new claimants rather than increases in individual payments or existing ones. So, why have these numbers increased?
One of the main reasons for the increase is claims related to anxiety or stress. A snapshot of reasons for claiming PIP from April 2024 shows that claims for psychological reasons are nearly three times as prevalent as for any other condition.
A link to the government statistics can be found here.
The report shows the trend for claims for sickness benefits by population percentage since 2002 in the table below, evidencing the increased trajectory since 2020.
The report's key findings include:
- Increase in Mental Health Problems: Surveys show a rise in reported mental health issues from 8-10% in the mid-2010s to 13-15% recently.
- Deaths of Despair: Deaths from alcohol, drugs, and suicide among 15- to 64-year-olds increased by 24% in 2023 compared to pre-pandemic levels, indicating a rise in severe mental health problems. These deaths were the main driver of a 5.5% increase in working-age mortality in 2023.
- NHS Mental Health Services: In December 2024, 2 million people were in contact with NHS mental health services, a 36% increase from 2019. The number of people with antidepressant prescriptions has risen by 12% since 2019.
You can find the report here.
The general trend shows a significant increase in claims with a psychological element over time. Since the second half of 2024, the majority of OIC matters now contain a claim for psychological injury.
The MOJ Portal data does not include a breakdown of injury types, and the CRU report form only provides tick boxes for 'soft tissue,' 'bone injury,' 'whiplash,' and 'other.' While the free-form box below often includes mentions of psychological injuries, it is not consistent enough for meaningful analysis.
The general impression is that the number of psychological injuries being presented in claims is rising. We are now seeing more claims for psychological upset adjacent to low-value incidents and injuries, such as minor trips and slips, scalds from hot taps, and injuries from broken chairs. With psychological conditions rising outside the legal space, as seen by PIP and HSE numbers, it is not surprising that this trend translates into the claims space as well.
DWF colleagues in Northern Ireland have long explained that, as members of a post-conflict society, claimants in NI are more likely to have serious pre-existing mental health issues and exposure to trauma. This amplifies the impact of the significant rise in damages for psychological injury recently seen in the province. While the two situations are not in any way comparable, insurers are now seeing the impact of a post-Covid society, with the general population less resilient to psychological upset than before 2020. DWF believes this may also lead to a rise in somatoform disorders. This development trend may take some time to fully emerge due to the typical lifecycles we see in these matters.
