A lot of controversy surrounds the fatal car crash of reporter Michael Hastings. There's no accident report yet; no toxicology report, either. That might take months, as high-profile cases like this often involve a lot of lawyers. Even when there's less controversy, a fatal car crash will involve insurance companies, legal wrangling, and in most states and some major cities (like Los Angeles), a Collision Reconstruction Unit (CRU). Think of it as CSI for car crashes: Investigators painstakingly sift through evidence to make sure that they can accurately say what happened during an accident. All of this means it could be a very long time for official findings on Hastings's accident to be released.
But even without official reports, there's no lack of information about his deadly wreck.
What's known is that a camera mounted on the dash of an LAPD cruiser showed his C250 running a red light at a high rate of speed around 4:20 a.m. on the morning of June 18, 2013. Just a few minutes later, the same cruiser was called to the scene of the accident, where the C-class was engulfed in flames after apparently hitting a tree, its engine ejected from the hood of the car. Hastings was found in the driver's seat, burned beyond recognition.
Immediately, conspiracy theorists jumped to conclusions. Because Hastings had blown the lid off General Stanley McChrystal's insubordination and was a pioneering muckraker, Internet posts started spinning the idea that Hastings's car had been sabotaged. C-class Benzes just don't blow up like that, the theories went; and their engines don't randomly pop free of their mounts and fly out from underhood.
Without some form of foul play, how could Hastings's crash have been so violent, so deadly?
Sadly, the answers we've found almost entirely point to the less-exciting conclusion, that when a car hits a stationary object like a tree, a brick wall, or a telephone pole, very bad things happen. Here's the grim how and why.
THE REALITIES OF A HEAD-ON CAR CRASH
"When I first started in New York's Collision Reconstruction Unit 19 years ago," starts Lieutenant Dan Bates, who now supervises said 76-person department for the state, "we'd see that if you hit a solid object, like a house or a tree, you'd stand a good chance of dying if you were traveling at around 20 miles per hour. Now, we're seeing survivors even above 40 miles per hour."
That's the end of the good news from Lt. Bates.
He explains what the Insurance Institute for Highway Safety (IIHS) has seen in the lab and from evidence provided by the National Highway Traffic Safety Administration (NHTSA) examining thousands of deadly accidents.
"You almost never hit an object squarely," Bates continues. "That's a serious problem, because the primary safety device in the cockpit of your car, besides of course the seatbelt, is the front airbag. When you're going 40 miles per hour, you don't realize you're traveling at 58 feet per second."
It's not just the car traveling that fast, it's you, essentially traveling through space at that speed. If your car hits a telephone pole or another car at that velocity, your body will still hurtle forward; meanwhile, the car is decelerating rapidly.
Worse, and most catastrophically, if the impact wasn't square, now the car is starting to rotate, and that rotation is exceedingly harmful, both to your car and to you.
THE SCIENCE OF A HIGH-SPEED HEAD-ON CRASH
In 2007, the IIHS examined evidence from the NHTSA that showed a very disquieting trend. David Zirby, the IIHS's head research officer, says that their Moderate Overlap Test (where 40 percent of the front of the car engages a solid object) was designed to demonstrate what happens in most head-on accidents. They already knew these collisions were rarely dead-square, but the NHTSA's database showed that when 25 percent or less of the front of the car took the brunt of the impact, the resulting injuries proved disproportionally fatal. Although a bit reductive, the IIHS's findings suggest that the less the front of the car is involved, the more deadly the accidents are. Think sideswipes rather than head-ons. Think telephone pole or tree, smacked with just one headlight, but at a high speed.
"These were accidents that almost didn't happen," Zirby says.
To figure out what was going on, the IIHS devised its own tests, which eventually became the Small Overlap Test, first used systematically throughout the U.S. fleet in 2012.
The IIHS's findings started to reveal, as far back as 2007, that these accidents were deadly because cars' safety cells were designed as secondary accident mitigation. It's the opposite of NASCAR, where an entire safety cell is built to withstand the violence, even if the front of the car breaks away. Passenger cars aren't made that way, and these offset wrecks were showing why that's so dangerous.
Let's say a car hits a telephone pole off-center, with only 25 percent of one side of the bumper striking first. At the moment of initial impact, the frame rails—which essentially stick out from the firewall as extensions of the frame—are too far inboard of the impact to be engaged.
Missing the frame rails results in less deceleration time and a far more violent stop. "Just 40-50 milliseconds more deceleration time can be the difference between life and death," says Christopher Puckett, accident analyst for Digits LLC and is a former state trooper for New York's CRU.
Only a quarter of the mass ahead of the safety cell remains to absorb the impact, and that's not enough. The impact then pushes right through the front wheel, driving the suspension backwards. Depending on the vehicle and its speed, this could collapse the steering column, buckle the A pillar (pushing it back toward the driver or front passenger), and if the accident is severe enough, begin to crimp the door frame, front floor section, and door rail.
THE DEADLY PART
If all of the above happened, you might still have decent odds of surviving. After running his own tests in the lab and researching NHTSA photographic evidence reports, Zirby has found that partial overlap accidents introduce rotational force.
Rotation makes you miss the airbag. Here's why: "You're now moving sideways relative to the car. When we slow down the film, we see the crash-test dummies miss or slide off the airbag. [The dummy] hits the A-pillar or the IP (instrument panel)." Zirby claims that if the steering column is engaged in the impact, it can make matters even worse. "The steering wheel takes off right, and the dummy takes off left."
All of this is happening with your body still flying forward, maybe at 50 feet per second or more. The airbags blow, but you're heading away from them, in most instances, toward either the center of the vehicle, or the A-pillar, or a window. You're missing the airbags entirely. Meanwhile the car's corners are caving in toward the front passengers.
WHAT THE HUMAN BODY CAN AND CANNOT SURVIVE
"It seems like several times a year we get to a car crash and someone is walking around outside the car, alive, and then they go home and die," says Bates. The cause is a tear in an internal organ or vessel. "They're bleeding out from the force of the crash," Bates continues. He advises that anyone who's experienced a serious car accident should go to the hospital immediately, despite feeling perfectly fine.
This kind of damage is more common for passengers who aren't belted, Bates explains, because they're more likely to be exposed to even greater deceleration. Either way, the rotation of the vehicle plays a role, and so does the ricochet off the solid object, which contributes to what Zirby calls "violent yawing."
"It's not uncommon for the car to have the initial impact and then spin backwards off the road or into another car or stationary object," Zirby says. They've also seen seats break free from their moorings, or hit the dummy in the back of the head on the ricochet off the solid barrier, causing even more carnage.
Arnold Wheat, an ex-CRU officer with more than 30 years of experience for both Colorado and New York and author of several studies on car accidents, says that most of what you see is grimly obvious: A head strikes against the A-pillar, the window glazing, the steering wheel, or the dash.
EXPLOSIONS AND ENGINE EJECTIONS
Conspiracy theorists probably don't want to hear it, but Puckett says he's seen all sorts of mechanical combustions, from engine ejections to vehicle fires to cars sawed in half by stationary objects. "The engine is hot," Puckett says. "There are any number of fluids that can ignite, and I'm sorry to say that [that] isn't indicative of foul play."
Wheat, Zirby, and Bates also corroborate Puckett's conclusion; cars traveling at a high velocity slamming into hard objects aren't really designed to prevent such violent ends. While engine ejections and explosions aren't necessarily the norm, they aren't as rare as most of us would guess.
"I think we've become complacent, where we think all this technology is going to save us no matter what," says Bates. "But you have to keep in mind—there are crashes that are not survivable."
THE FUTURE OF CAR CRASHES
Hitting a tree or a utility pole with a car is never going to have a positive outcome. Not hitting that tree, however, is a matter that might be decided by one very old form of technology: money.
Today, automobiles are frequently tethered to mobile phones via wired connections, Bluetooth, or both. Increasingly, insurers and law enforcement are subpoenaing both phone records and so-called "black boxes" from cars (already present in the majority of new models, and mandatory starting in September 2014) to piece together critical data from the time of an accident. This recorded data includes the speed of the car, whether the driver braked, how hard he or she braked, rotation of the wheel (to determine if the driver swerved or not), and, of course, whether the driver was texting or talking on the phone.
Distracted driving was cited as a huge concern by all of the CRU and ex-CRU investigators we spoke with, and most believe that, even if laws don't mandate that these driver-behavior records be made available post-crash, insurance agencies will start demanding them. We see the seeds of this in the form of opt-in insurance products from companies like Progressive, which can capture driving data via a dongle that plugs into a car's diagnostic port. Good drivers are rewarded with premium discounts. Though, it's important to note that, at present, these particular programs do not use the data collected to increase premiums; drivers only see their rates stay the same or decrease (barring any accidents).
Whether this type of system could ever see widespread adoption in the U.S., either voluntarily or via insurance mandates, is still to be determined. Two significant hurdles, driver privacy concerns and differing state regulations regarding the use of insurer data loggers, would still need to be cleared.
HIGH-TECH AND LO-FI SOLUTIONS
1. Slow down.
In the built environment, a.k.a. city streets, driving like a maniac isn't just oafish and illegal, it's deadly. So it's important to understand just how much force you're dealing with in a car accident as speed increases.
With an increase in speed, that force goes up exponentially, not on a nice, smooth curve. The math is pretty simple: Divide the weight of the vehicle in half. Multiply that by the square of the velocity. In terms of kinetic energy, that translates as 45,464 foot-pounds for a 3400-pound car hitting a stationary obstacle at 20 mph. Plow the same car into a tree at 40 mph and the amount of energy quadruples to 181,855 foot-pounds. If you survive that, you're just plain lucky, as the odds are very much against you.
As Bates points out, when cars travel in opposite directions, there's far more danger. Add in roadside obstacles and that danger greatly increases again. Not speeding buys you precious reaction and deceleration time.
2. Turn off your mobile phone.
Now you know why extra braking time is so important. Puckett says just 40-50 milliseconds of deceleration time can save your life in the event of an impact. That's just an eyeblink more time on the brake, a scant instant when you weren't looking at a text on your phone but looking at the road. Bates says this is especially critical for teens. He and his wife bought his 18-year-old son a "dumb phone," i.e., one that cannot receive texts. It's for phone calls only, and naturally the officer doesn't want his son talking on the phone while driving. "We have to not let these devices own us," Bates says bluntly, noting that especially with teen drivers, the innocent smartphone is as deadly as a gun.
3. Pad roadside objects.
We're not likely to see a day when every telephone pole in the built environment is padded, but at street corners and high-traffic zones it's a fairly cheap solution. John Whittall, a retired NYS Trooper from the Collision Reconstruction Unit says that there are studies about the strength of telephone poles and Lt. Bates explains that ideally, poles would be designed to break or bend to help absorb the kinetic energy of an impact. Good luck convincing the utility companies of that. But even a small amount of padding would save lives, because any extra deceleration time afforded is critical.
4. Buy the right car.
IIHS's Zirby explains that the organization's small overlap test has resulted in carmakers redesigning their vehicles with stronger safety cells. He says that when the outfit began its testing protocol, they didn't have any direct way to measure the strength of that cell. That's what the 25 percent standard is now doing. As a result, some cars are starting to perform better in this test because safety cells are being reinforced.
5. Hope for better airbags.
The IIHS's findings suggest a change that every carmaker should implement as soon as possible—designing curtain airbags that cover the entire window and A pillar, since the oblique nature of small overlap crashes forces passengers outboard. For now, even cars with curtain airbags aren't covering enough of the interior, since they were initially designed to help in the event of direct side impacts and rollovers.
Ultimately, there's no simple, magical solution that will ensure your safety in a car crash. Driver training and good practices behind the wheel are a start. Advancements in vehicle and safety technology help as well. Indeed, modern cars are safer than ever, but once they leave the road, all bets are off. Your car may be engineered to battle the laws of physics to protect you during a crash, but unfortunately, not all battles are winnable.
This article is care of www.road&trackmagazine.com and the original article can be found here
Higher insurance premiums for electric and hybrid cars is the biggest factor putting off most drivers from making the switch from diesel to low emission vehicles, according to a survey published today (31.1.17).
Research conducted on behalf of the Institute of the Motor Industry (IMI) shows that while 40% of the public have grave concerns about air pollution and see Ultra Low Emission Vehicles (ULEV) as a solution. But they are unwilling or unable to pay the increased insurance premiums currently levied on these cars. As a result they won’t consider buying or leasing one in the near future.
Insurers charge up to 50%* more to cover electric and hybrid cars because of the higher purchase price and the current lack of skilled technicians available to repair them. As things stand only 1% of mechanics in the UK have the necessary qualifications to carry out work on the high-voltage systems of ULEVs and they are almost exclusively employed within franchised dealers.
The public are similarly concerned with the lack of charging points available to service electric and hybrid cars, according to the IMI research. But, while the government is supporting the development of the charging infrastructure with a £600m fund to promote clean cars, it continues to resist any intervention in the market to deal with the serious skills gap.
The IMI has called on Ministers to help with a £30 million investment in training from its £600 million fund created to promote emission free vehicles.
The IMI had positive dialogue with the Department for Transport on the skills issue in 2016, but since Chris Grayling MP took over as Secretary of State the talks have stalled. The new Minister with the brief for the Modern Transport Bill, Environment and Technology, John Hayes MP, has so far been reluctant to engage in further discussions.
Vital Research and Statistics conducted the survey for the IMI. They polled 2,000 UK adults with driving licenses between 13th and 19th December 2016. Only 17% of respondents thought the extra costs for insurance for ULEVs were a price worth paying for the environmental benefits. Even though 38% ranked Air Pollution as the thing they worried about most.
With a passion for improving climate change and the growing level of air pollution, The shadow Secretary of State for Environment, Food and Rural Affairs, Rachael Maskell MP, said:
“Members of the public are rightly concerned about air pollution, and many drivers clearly want to do their bit for the environment. But it’s up to the government to make sure the right incentives are there.
"The reality at the moment is that motorists are effectively penalised for choosing greener options. For that to change the government needs to step up and invest more in clean fuel vehicles, as well as the infrastructure and skills needed to support, service and maintain them.”
There were age and regional variations in the responses. 18-24 year olds are more willing to pay higher insurance costs, 21% compared to the over 55s of whom only 9% would pay the extra cost. More than 20% of residents of London, Birmingham, Edinburgh, Brighton and Cardiff believed the extra costs worth paying for cleaner air. Only 11% of residents of Coventry, Leeds, Southampton and Newcastle agreed.
IMI CEO Steve Nash said:
“Millions of tax payers cash spent on charging points will be wasted if the government won’t help independent garages and wider industry keep up with the switch to electric.
“It’s not rocket science. Small businesses are uncertain about future demand for work on electrified cars and won’t risk investing in the skills they need without help from the government. This means insurance and servicing costs will stay out of the reach of many drivers and car buyers will still be attracted to diesel cars as the most fuel efficient alternative, keeping them on our roads in significant numbers for decades to come.
“The government has recognised the most obvious barrier to consumers buying electric cars, which is the charging infrastructure, and it is taking direct steps to address this. However, it needs to recognise that this is the biggest change in the automotive industry for over 100 years and there are other barriers that must be addressed too, not least the skills gap.”
Article care of the IMI and the orginal article can be found here
The judiciary has weighed into the debate about raising the small claims limit for personal injury by expressing “serious dismay” about the lack of consultation with judges and warning the government that any savings are likely to be outweighed by the significant extra burden litigants in person (LiPs) will put on the small claims court.
This need for extra resources would go hand in hand with less income from court fees, meaning it will be the public purse, rather than insurers, who will end up paying for them – implications which had not been addressed by the Ministry of Justice’s impact assessment.
The response to the Ministry of Justice consultation came from the judges who make up the civil executive team (CET), a recently formed group led by Lord Justice Briggs, the deputy head of civil justice, with Mrs Justice Simler, His Honour Judge Bird and District Judge Jenkins.
The Master of the Rolls, Sir Terence Etherton, has charged the group with overseeing the proposed reforms and changes in civil procedure, and it reports to the Judicial Civil Executive Board, another recently created body. Both the board and Sir Terence have seen and approved the response.
The CET expressed “a serious level of dismay that a proposal with such serious potential implications for the management and delivery of civil justice has not been made the subject of discussion with the judiciary before being launched as a public consultation”.
The response focused solely on the increase in the small claims track (SCT) limit for PI from £1,000 to £5,000.
While not seeking to address the merits of the proposal “head on or in full”, the response said “it is obvious, however, that there are serious access to justice issues for those with genuine but modest personal injury claims”, as 90% of them will be moved from the fast-track (FT) to the SCT.
The “very large increase” in LiPs that was likely to occur would both reduce the number of settlements and multiply the judicial time needed per case – compared with an equivalent case in the FT – by a factor of at least two, “but probably three or four”, the CET said.
“Of course, it is impossible to know in advance whether the savings which would result from a lower number of claims overall will be sufficient to counteract the additional burdens upon resources…
“But those contributing to this response (who consist of DCJs and DJs who actually conduct FT and SCT trials and case management) are generally very doubtful that the increased burdens will be cancelled out by any sufficient decrease in the caseload.
“If the perceptions about reduced settlement rates and increased court and judicial time needed per case are sound (and they derive from judges who are very experienced in this field) then the reduction in case volume assumed in the impact statement will come nowhere near cancelling out the consequential increase in the demands upon court and judicial resources.”
The CET said a large decline in the number of claims issued would have a similar effect civil court fee income. “Depending upon the amount of the decline, the court service may face having to fund increased resources at the same time as experiencing a reduction in fee income.” Raising issue fees would not be a “sensible” response, it added.
“There is probably no way round the simple proposition that if insurers are to be relieved from bearing the burden of the preparation of cases for meritorious claimants (because the claimants will no longer recover fixed costs), then the claimants will need the additional and expensive assistance of the courts and the judges to be able to prepare and present their cases. There is no sign in the impact statement that this likely consequence has been addressed.”
Other concerns included the “possible collapse” of the RTA portal once 90% of its caseload was removed. “No explanation is provided in the consultation or impact statement as to how the portal can adapt to accommodate LIPs. There is merely an assumption that it can, unsupported by any reasoning.”
The response said that some of these burdens “may be alleviated” if and when the Online Solutions Court (as the proposed online court is to be formally called) becomes available, but this would not be in time for the proposed change.
In any case, it said, the online court “is not at present configured to accommodate PI cases, although it probably could be, if additional resources for that purpose are made available”.
article care of legalfutures and can be found here
New research from Insure the Box suggests just 12% of 17 to 29 year olds think they should stop if they are involved in an accident where there is damage or injury to another party.
Furthermore, only 12% of 17 to 29 year olds think they should share their insurance details with anyone else, despite the fact that over 90% said they do keep details of their own insurer in their car.
In the case of a minor accident, where no one is hurt, only 14% of younger drivers said they should get the name, address and insurance details of the other driver before they leave the scene. Yet this could make it difficult to make a claim against the third party if the driver was not at fault.
‘It’s worrying to see the level of confusion among younger drivers about what to do if they have an accident’, said Simon Rewell, road safety manager for Insure The Box.
‘Knowing what to do in case of an accident is a key part of learning to drive, but it seems that this important information might be being forgotten very quickly after young motorists have taken off the L-plates. Twelve per cent of respondents to our research did not know that it is a legal requirement to stop if they damage something or injure someone else in a collision.
‘What was more encouraging to see, was that 93% of those surveyed would use their phone to take pictures of any damage and the position of the vehicle, highlighting the value of new technology for this generation of drivers.’
Insure The Box has dealt with over 100,000 Accident Alerts since its launch in 2009 and in 2016 emergency services were called on average 16 times a month in response to an Accident Alert.
Article care of www.bodyshopmag.co.uk
The recent court case of Lenderink-Woods v Zurich Assurance Ltd could be as simple as one adviser’s error about a client’s domicile status. But after digging into the detail, the case raises serious questions about the role of the Financial Ombudsman Service (FOS) and could encourage many more to pursue advisers in court.
Earlier this month New Model Adviser® brought to light a judgment, made in December from Manchester High Court, which overturned a previous FOS decision not to uphold a complaint of unsuitable advice. The court ordered Zurich to pay £223,000 in damages.
The court decided the FOS had been wrong. So how had the ombudsman come to its decision, in 2014, that Angela Lenderink-Woods had been given fair and reasonable advice when a judge decided not two years later that she was owed hundreds of thousands of pounds from the company that provided that advice?
Joseph Willows, director of Carlisle-based firm Integer Financial Management Limited, the adviser who helped Lenderink-Woods take her claim to the FOS, said Zurich ‘threw everything’ at the adjudicator and ‘bamboozled him with science’.
The FOS case centred around Lenderink-Woods’ domicile. The adviser wrongly took her to be UK-domiciled. On that basis he recommended a gift and loan trust. The FOS recognised that because of her domicile, the gift and loan trust was not necessary for inheritance tax planning, but decided that alone did not make the advice unsuitable.
It should be noted that all this came after Zurich had agreed to compensate the client over £500,000, in July 2012, but then withdrew the offer one month later.
The judge in the case, Justice Norris, contradicted the FOS because he believed the client had received poor advice as a result of the adviser making an error about her domicile. He decided it was this error that led the adviser to go on to recommend unsuitable products and subsequently incur unnecessary fees.
In an earlier decision in this case, Justice Norris described the ombudsman’s conclusions as ‘not promising material out of which to forge an argument that [the adviser’s] recommendation of the loan trust scheme was beyond any realistic challenge’.
In the final hearing the judge concluded: ‘The [FOS] appears to have assumed that the gift and loan trust and the bonds were simply pieces of paper that had to be signed to secure a tax advantage, and that really nothing had changed. Of course, in truth, Mrs Lenderink-Woods had converted her absolute ownership of her share portfolio into an interest-free loan obligation owed by two of her daughters.
‘She did not have “access to her capital”, nor did she receive “income,”’ he said.
If Lenderink-Woods, now a 96-year-old and 80 years old at the time she was given the advice, had to go through the effort and expense of taking the case to the courts to get the result she deserved, it has to be asked whether her first port of call, the ombudsman, was an inferior option. Is going to court the only way for clients, advisers and providers alike to get a fair hearing?
Philippa Hann (pictured above), partner at solicitors Clarke Willmott, said the purpose of the FOS was to be a more informal and simpler alternative to taking a claim to court, and it succeeded in fulfilling that purpose.
However, Hann said she had seen some ‘odd’ decisions from the ombudsman, which become less surprising when you look at the flaws in the system.
‘I have seen some quite odd decisions come out of the FOS and that is in part because they do not have to take account of legal principles,’ said Hann.
‘Inevitably when you have an individual making a decision on what is fair and reasonable there is quite a lot of subjectivity that comes into that process.’
Ordinarily a court case would be based on one or more of three things:
Breach of contract.
Breach of statutory duty or breach of conduct of business sourcebook (Cobs) rules.
Hann said: ‘In comparison, the ombudsman asks the question: “Was it fair and reasonable?” not: “Were the regulatory rules complied with?”’
‘Who is to say what is fair and reasonable?’ said Hann.
The process of going through the FOS means you will first be dealt with by an adjudicator, followed by the ombudsman if you disagree with the decision of the former.
In the Zurich case the adviser helping Lenderink-Woods, Willows, said the adjudicator was leaning towards upholding the complaint.
‘The adjudicator was minded to uphold the complaint,’ he told New Model Adviser®.
‘[Zurich] spun its argument to the ombudsman and succeeded in turning the ombudsman around in its favour.
Hann said it was not unusual for the ombudsman to come to a different decision from the adjudicator.
A FOS spokeswoman said in the majority of those cases the ombudsman reaches the same overall outcome as the adjudicator.
‘Where an ombudsman reaches a different conclusion this is often because new facts or evidence came to light after we gave our initial answer,’ she said.
Richard Lord (pictured above), director of Cardiff-based firm Bartholomew Hawkins, said his experience of the FOS was that it delivered a fair outcome but he commented that there seemed to be an issue with the level of expertise of adjudicators compared with ombudsman.
‘The first case handlers are not usually experienced enough in my view. The people I have spoken to there have never held an adviser role before,’ said Lord.
He said this lack of experience could create issues in terms of how claims are handled.
Peter Hamilton, a barrister at 4 Pump Court, said this was partly why the courts were a better option for complex cases.
‘The FOS provides a useful service for customers in simple and low value cases,’ he said. ‘The service, as you know, is free to the customers.
‘But if the facts or law are at all complicated, the FOS rapidly gets out of its depth, and recourse to the courts is likely to provide a much better answer in the sense that it is likely to get both the facts sorted properly and the law right.’
The FOS disputed its adjudicators lacked experience.
‘The technical, academic and professional qualifications of our adjudicators and ombudsmen are as varied as the work we cover.
‘We have accountants and lawyers working for us as well as former IFAs, insurance and mortgage brokers, bankers, trading standards officers and stockbrokers.
‘Our staff are appointed to settle disputes - and we require the relevant qualifications and experience for the jobs we need to do this. We set high standards of professionalism, providing comprehensive training on core skills and technical knowledge,’ said a FOS spokeswoman.
Hamilton explained the numerous differences between the two systems that make the court system more fool-proof than the ombudsman.
‘The court process requires both sides to disclose all relevant documents and it gets the issues properly defined by requiring statements of each party’s case, and witness statements. Those documents are exchanged by the parties,’ he said.
The barrister noted other processes such as expert evidence, which is available at a trial, and the judge having access to a counsel, which also make the courts a more accurate vehicle for obtaining justice.
The appeals processes also set the FOS and the court apart.
‘The court process provides for a fair appeal,’ said Hamilton. ‘That is not available in relation to FOS cases, which can only be challenged on judicial review, which is a very limited remedy to a firm. Of course, a disappointed complainant to the FOS can reject the decision, and decide to sue. But that depends on the value of the case making that course of action economically viable.’
This brings us to the obvious trap for many clients who believe they cannot get justice from the ombudsman.
‘Litigation is expensive,’ Hamilton pointed out.
For those seeking justice, cost can be a major deterrent to taking a case to court. Lenderink-Woods’ solicitor, Michael Johnson of Bendles Solicitors (pictured above), said his client’s legal fees would have exceeded the compensation she was awarded.
Lessons to learn
It is vitally important the FOS functions well in the first place and does not find itself ‘out of its depth’.
This cuts both ways. Advisers may well feel they are the chief losers when it comes to the FOS not properly getting to grips with complex cases. But even more worryingly, clients will increasingly pursue their adviser through the courts, if they feel the FOS did not do a thorough job. Judgments such as this support that view.
The FOS wanted to make a clear distinction between what it offers compared with the courts.
‘We were set up…to settle complaints quickly and with a minimum of formality. We were not intended to replicate the court process but to offer consumers a free alternative to refer a complaint to and financial businesses access to a dispute resolution service.
‘When considering what is fair and reasonable in all the circumstances we take into account the relevant law and regulations, regulators rules, guidance and standards, codes of practice and where appropriate what we consider was good industry practice at the time.
However it acknowledged it would take on board what had happened with the Lenderink-Woods case.
‘It is very rare for cases that we’ve previously looked at to go to court – and we’ll be looking at the court’s decision carefully.’
The service said it had already made changes to how it deploys expertise to case handling and has sped up the process.
‘We provide ongoing training and support to all staff to help them understand our approach to different types of cases and reach the right answer. More recently we have put our ombudsmen, our most experienced and qualified staff, at the heart of our case-handling.
‘This means that all staff have expert help and advice on hand as soon as they start looking at a case. This additional support means that we can get to the right answer more quickly - and we're getting very positive feedback from businesses about the benefits they are seeing from these new ways of working,’ said a spokeswoman.
However, the FOS said it would look carefully at why its decision was overturned by the court.
The service drew a clear distinction between what it offered compared with the courts.
‘We were not intended to replicate the court process but to offer consumers a free alternative to refer a complaint to and financial businesses access to a dispute resolution service.’
A Zurich spokesman said the company would accept the decision of the court but mentioned the fact the advice was given a long time ago.
‘Zurich notes the judgment delivered by the Manchester High Court. The events which formed the subject of the claim took place nearly 16 years ago, and Zurich ceased operating a network of advisers over 10 years ago.
‘Zurich accepts the ruling and will comply with it.’
This article is care of
A judge has ordered Zurich to pay damages of £223,000 over advice given by one of its appointed representatives to help a client reduce their inheritance tax (IHT) liability.
The judgement, which related to advice given by an Allied Dunbar adviser in 2001, overturned a 2014 Financial Ombudsman Service (FOS) decision that found in Zurich's favour.
The advice was given to Angela Lenderink-Woods, a now 96 year-old British national who has lived in Costa Rica since 1980. In 2001 she had an investment portfolio worth £567,000 which had a potential IHT liability.
She turned to Allied Dunbar adviser Huw Davies for advice on how to reduce the potential IHT bill for her daughters. He advised Lenderink-Woods to open a gift and loan trust in order to reduce the liability.
However, this was erroneous because she was not UK domiciled.
This error formed the core of the complaint. Lenderink-Woods said Davies had unnecessarily sold her offshore investment bonds and had put her in a gift and loan trust that was not suitable because she was not domiciled in the UK.
As a tied adviser, Davies could only recommend a certain range of products. In this case, he recommended several Allied Dunbar bonds.
During the hearing an IFA gave evidence about the suitability of the advice. He said a tied adviser was not able to give competent advice to the topic.
'If competent advice was to be given an adviser would have needed to be independent and able to recommend products and funds from across the marketplace,' he said.
This was not challenged in court.
An issue began to emerge in 2011, when Lenderink-Woods' daughters questioned the charges being paid for the advice.
According to the judgement, Lenderink-Woods thought she was paying 2% (and in fact thought this was 2% on returns), but charges for the bonds actually came to 4.5% for the first year and at least 2.3% per annum over a ten-year period.
This included a 0.5% annual fee collected by Davies. This was mentioned to Lenderink-Woods, but the judgement said 'he made no mention' of the Allied Dunbar management charge.
This included an offshore investment bond with an annual 1.5% admin charge and a personal portfolio bond which had set-up fee of 2% of the original investment for the first year, and then 1% for the next four years.
The fact these were not made clear to Lenderink-Woods before she signed up to them was a breach of the Allied Dunbar sales process, according to Justice Norris.
The judge ruled that for the amount invested, around £500,000, the wealth management fee should have been 1%. Davies exceeded this.
When Lenderink-Woods brought her complaint about the charges, Zurich initially offered her compensation of £459,567 in July 2012.
However, the company retracted the offer one month later.
In a later FOS decision Zurich said it retracted the offer because it believed the original response may have been based on incorrect information.
‘We have found no evidence to suggest that these bonds were not suitable products to meet her objectives at that time,’ the company stated.
This was despite a warning from a media relations manager at Zurich telling the company it was on morally ‘dodgy ground’ with the retraction, and a compliance officer stating he felt ‘increasingly uncomfortable’ with that course of action.
The FOS complaint
The FOS rejected the complaint against Zurich in January 2014 on the basis that the advice to use the trust did not in itself cause financial detriment.
'By placing the investments in the offshore bonds, this had the effect of removing the potential future tax liability. Overall, given [Mrs Lenderink-Woods'] requirements to mitigate her tax liability whilst retaining access to her capital and also receiving an income, the advice seems to have largely met her needs,' the FOS adjudicator said.
Justice Norris argued this assumed the trust and the bonds 'were simply pieces of paper that had to be signed to secure a tax advantage'. This was not in fact the case, since Lenderink-Woods did not have access to her capital and could not receive income from it due to the trust arrangement.
The FOS said it was unable to comment on the case.
The client's compensation
At the time of the hearing in July 2016 it was established the client’s investments had not grown over the 15 years it was invested, due to the charges in place and the underperformance of the discretionary fund manager Davies chose, Seven Investment Management (7IM).
'The total of the funds withdrawn and remaining is more or less the same as the total originally invested,’ the judge said.
However, the judge said the performance of the investment was 'not within the scope' of the case. Instead it was Davies' advice to transfer the portfolio into a single asset class in the form of the trust, and the fact this involved 'unnecessary and duplicative costs'.
As a result, he ordered Zurich to pay £223,000, representing the impact on the value of the fund to July 2016.
A Zurich spokesman said the company accepted the ruling.
‘Zurich notes the judgement delivered by the Manchester High Court.
‘The events which formed the subject of the claim took place nearly 16 years ago, and Zurich ceased operating a network of advisers over 10 years ago.'
‘Zurich accepts the ruling and will comply with it,’ he said.
A spokesperson the claimant’s solicitor, Bendles, was not available for comment. 7IM did not respond to a request for comment.
You can read the full judgement in the case here.
The index showed that the average shop around premium jumped by 5.8% over the last quarter.
Average car premiums increased by nearly £35 over the three months ending 31 December, hitting a four-year high, according to the AA's latest British Insurance Premium Index.
The index showed that the average shop around premium jumped by 5.8% over the last quarter to £633.06.
Michael Lloyd, the AA's director of insurance, noted several factors that are influencing car insurance premiums including insurance premium tax (IPT) and whiplash.
He said: "Uninsured driving is rising; partly I believe because of the increases in Insurance Premium Tax (which will rise by another 2% in June), and fraud - particularly whiplash claims - continue to dog the industry."
Average third party and theft premiums were also up 8.9% to £940.56, compared to the previous quarter.
The AA also said that accidental damage claims inflation was currently adding around £25 per year to the average quoted price.
David Brown, insurance partner at KPMG UK, added: "The cost of accidental damage is rising fast - and I believe it's becoming a much bigger threat to motor policy price inflation than whiplash."
Winners & losers
On personal injury claims, Lloyd stated: "The number of personal injury claims has started to show signs of slowing and the Ministry of Justice has embarked on fresh reforms to curb cold-call culture which contributes to Britain's unwelcome status as 'whiplash capital of Europe'."
The index also revealed that all regions saw premiums increase apart from Northern Ireland where the average quoted fell by 3.0%.
AA said this still made the region the third most expensive region to insure a car.
The biggest climber was London, where quoted premiums rose 8.6% to just over £800, making London the second most expensive region to insure a car, after the North West where the average quoted premium is £887.35.
Scotland remains the cheapest region to insure a car which, after an increase of 5.5% has an average quoted premium of £458.75, the index highlighted.
article is care of www.insuranceage.co.uk and the original article can be found here
The Supreme Court has ruled the government cannot begin the process of leaving the EU without a vote in parliament.
Last October the High Court ruled the government could not trigger Article 50 and begin the process of exiting the EU without holding a vote in parliament.
The government challenged this ruling in the Supreme Court.
Prime Minister Theresa May (pictured) wanted to bypass a parliamentary vote and use royal prerogative, or the authority of the Queen, to trigger Article 50 before the end of March.
Labour leader Jeremy Corbyn has already told his MPs not to vote against triggering Article 50. Along with the support of the majority of Conservative MPs, this means the government is unlikely to lose a vote.
However, the majority of MPs campaigned to stay in the EU before the referendum last year. This has prompted speculation that paty rebels within Labour and the Conservatives, as well as SNP and Liberal Democrat MPs, could at least stall the process of exiting the EU.
The president of the Supreme Court, Lord Neuberger, speaking at the Supreme Court this morning, said the ruling was not a comment on the result of last June's referendum result.
‘The issue of these proceedings has nothing to do with whether the UK should exit the EU, or the terms or times of that exit. The main issue is whether the government can trigger Article 50 without the prior consent of parliament,' he said.
The Supreme Court also found in favour of the government on the issue of putting Article 50 to the devolved administrations in Scotland, Northern Ireland and Wales.
Both Scotland and Northern Ireland voted in favour of staying in the EU last June.
Gina Miller, founder of investment management group SCM Private, was the lead claimant in the High Court battle and was at the Supreme Court this morning.
'No prime minister, no government can expect to be unanswerable or unchallenged. Parliament alone is sovereign,' she said.
article care of Citywire.co.uk and the original article can be found here
Consultants state job cuts will stretch across the UK but especially in the South East and cities such as Manchester, Liverpool and Sheffield.
A report commissioned by Access to Justice has warned that 35,000 jobs in law and other specialist firms would be at risk if the government proceeds with plans to clamp down on personal injury claims.
The Ministry of Justice (MoJ) launched a consultation last November on proposals designed to reduce the number of whiplash claims and allow insurers to cut premiums.
The government argued that the current number of whiplash claims is "unacceptably high" and savings would be passed on by insurers worth around £40 per motorist.
The consultation closed on 6 January this year.
The report for Access to Justice, a campaigning group supported by the broader personal injury sector to respond to the government's proposed road traffic accident compensation reforms, was undertaken by macroeconomics research consultancy Capital Economics.
It found that nearly 80% of the 44,000 people directly employed in personal injury, including insurers, claims companies and medical reporting, face losing their jobs if the government proposals become law.
In addition, the economists estimated that personal injury activities support 40,000 jobs and £2.1bn value added to the UK economy through the spending of firms and employees.
Martin Coyne, chairman of Access to Justice stated: "It is extraordinary that this government is planning to destroy an entire industry and the livelihoods of tens of thousands of ordinary people for the sake of a £40 saving which won't happen."
Capital Economics' Mark Pragnell, who was the lead author of the report, added: "When considering not only the lawyers but all the other jobs that are supported by this work, we estimate that up to 77,000 jobs are at risk - many in locations where alternative jobs of similar value will be difficult to find."
He argued that the impact will be felt across the UK but especially in the South East and cities such as Manchester, Liverpool and Sheffield.
"These are not fat cat lawyers but ordinary working people earning an average £30,000 per year," Coyne highlighted.
"These plans fly in the face of the Prime Minister's personal pledge to ‘think not of the powerful but you (ordinary working people), when we pass new laws we'll listen not to the mighty but to you'."
This article is care of insurance age, and can be found here
Two recent Supreme Court judgments have considered the impact of dishonesty – on an insurance claim and on a settlement agreement.
In one, where ship owners sought to embellish their insurance claim through the inclusion of a false, but irrelevant, statement, the court held that the owners were nevertheless able to recover under their insurance policy.
In the other, evidence that an employee had dishonestly exaggerated the extent of injuries sustained in the work place entitled his employer’s insurers to set aside a settlement entered into with him before that evidence was available.
Through their differing outcomes, these cases serve to illustrate that, while the courts remain as ready as ever to take a strong stance whenever there is evidence of fraud, nevertheless and in line with the current trend towards a more level playing field for policyholders, where “the lie is dishonest but the claim is not”, for an insurer to avoid all liability for the claim will not be an appropriate sanction.
Versloot Dredging BV v HDI Gerling Industrie Versicherung AG
In Versloot Dredging BV v HDI Gerling Industrie Versicherung AG, the owners of a ship damaged by a flood in the engine room made a false statement that the bilge alarm had sounded. The Supreme Court found that this did not prevent the ship owners from being able to recover under their insurance policy. This was because, although the lie was dishonest, the claim was genuine. On the facts, the policy would have responded in the same way and for the same amount whether or not the statement was true. The dishonest statement did not therefore go to the recoverability of the claim, and was not material. The insurer was required to meet the liability, which was a liability that it had always had.
This type of dishonest statement was previously known as a “fraudulent device” and is now termed a “collateral lie”. The question for the court was whether collateral lies, statements that dishonestly strengthen what would otherwise be entirely genuine claims, constitute “fraudulent claims”. Fraudulent claims entitle the insurer to avoid liability. They encompass both claims that have been fabricated in their entirety and claims that have been dishonestly exaggerated as to their amount. Following the judgment in Versloot Dredging it is now clear that collateral lies no longer fall to be considered as a further category of fraudulent claim and will not entitle an insurer to reject the claim.
The scope of ‘fraudulent claims’, and in particular whether it extends to collateral lies, was an issue that had been left open by the wording of the Insurance Act 2015 (the Act). The Act, which applies to policies entered into after 12 August 2016, sets out an insurer’s remedies for fraudulent claims. These include the right not to pay the claim and the right to recover from the insured any sums paid by the insurer. The decision in Versloot Dredging has resolved the uncertainty as to whether a collateral lie would be caught by the Act. It is now clear it is not. Where a policyholder seeks to strengthen a genuine claim with a collateral lie, if that collateral lie is immaterial to the insured’s right of recovery, the insurer is not entitled to avoid the claim.
Hayward v Zurich Insurance Company plc
By contrast, Hayward v Zurich Insurance Company plc demonstrates that, in line with the usual maxim, fraud will still unravel all. In this case, by dishonestly exaggerating his injuries, an employee had obtained a settlement from his employer’s insurer that was significantly higher in value than what he would otherwise have recovered. When conclusive evidence proving the dishonesty later emerged, the insurer sought to set aside the settlement. To do so, it was necessary for the insurer to show that it had been induced by the misrepresentation as to the extent of the injuries to enter into the settlement. The issue for the Supreme Court was whether the insurer could still be said to have been induced by the misrepresentation in circumstances where, at the time of entering into the settlement, the insurer suspected that the employee was dishonestly exaggerating his injuries. The court found that it was sufficient that the misrepresentations were a material cause of the insurer entering into the settlement. There was no requirement for the insurer to have believed the misrepresentations to be true and the settlement could consequently be set aside.
Significantly, in Hayward, where the Supreme Court was considering the impact of the fraud on a settlement agreement not an insurance policy, the employee remained entitled to damages for his actual, albeit modest, injury. Were the same type of dishonest exaggeration to occur in the context of a claim made under an insurance policy, it would constitute a fraudulent claim for which a policyholder could not recover anything at all, whether at common law or under the new statutory regime.
See Versloot Dredging BV v HDI Gerling Industrie Versicherung AG  UKSC 45; Hayward v Zurich Insurance Company plc  UKSC 48.
The LGA said irresponsible traders were "putting lives at serious risk"
Drivers should beware of buying cheap and dangerous second-hand tyres, the Local Government Association has said.
Figures suggest that 4.5 million part-worn tyres are sold in the UK every year.
In some areas more than 80% are sold illegally, many with serious safety defects, according to council Trading Standards' teams.
The LGA said irresponsible traders were "putting lives at serious risk".
Part-worn tyres are being sold with unsafe repairs and incorrect labelling, council Trading Standards teams reported.
In 2015, there were 16 deaths and 908 road casualties that involved illegal, defective or under-inflated tyres, according to government figures.
Durham County Council officers found that just one of the 39 tyres they checked at various traders bore the required "part-worn" tyre marking, with 25 tyres having problems that could impair safety.
Ten tyres had unsafe repairs, nine were over 10 years old and one was 23 years old.
The LGA has advised motorists to check tyres for cracks, tears and lumps
The LGA is urging motorists buying second-hand tyres to check that they bear the required "part-worn" marking, which lets drivers know that the tyre has been checked and meets legal requirements.
Simon Blackburn, chairman of the LGA's Safer and Stronger Communities Board, said: "Cheap part-worn tyres might be tempting to buy but if they don't have the correct legal markings, motorists risk buying illegal tyres which could contribute to a major accident."
Mr Blackburn advised motorists to go to a reputable trader and check tyres for the "part-worn" stamp, as well as any cracks, tears and lumps.
He also said drivers should check the state of the tread before buying a tyre.
He added: "New tyres are available to suit all budgets, provide a safer option and should last longer, meaning they may offer better value for money in the long term."
Figures suggest that 4.5 million part-worn tyres are sold in the UK every year
The Competition and Markets Authority (CMA) has issued directions to Co-op Insurance insisting that it takes immediate action to comply with the Private Motor Insurance Market Investigation Order 2015.
From 1 February, on the product affected, Co-op will be charging a fixed rate for all drivers renewing their NCB protection with Co-op Insurance.
Prospective new customers will be given two quotes, one including NCB protection and one without, so that they can calculate the actual price of the protection. Customers will also be given the option of telephoning the company in order to get the information.
In addition, Co-op Insurance has been ordered to ensure that, by no later than 1 October 2017, all customers must be able to see the price they will be charged on the company’s website and in written offers and documents.
Adam Land, senior director of remedies, business and financial analysis, said, ‘It is very disappointing that a major company such as Co-op Insurance has taken so long to provide this vital information to its customers.
‘Before the Order came into force, the price and benefits of NCB protection were often unclear to drivers. We expect the Co-op to fully comply with the terms of our directions immediately so that motorists can search more easily for the best deal for them and decide whether or not they want this optional cover.’
The Order followed the CMA’s market investigation into private motor insurance. Among other things, it requires that private motor insurance providers offer better information on NCB protection by 1 August 2016.
Co-op Insurance was the only one of the major insurers which failed to meet this deadline, and since then the CMA has been working with the company to help ensure that it complies with the law as soon as possible.
This article is are of www.bodyshopmag.com and the original article can be found here.
New cars and motorcycles could no longer require an MoT for the first four years under plans unveiled by transport minister, Andrew Jones.
The government is consulting on the plans which will bring England, Scotland and Wales in line with Northern Ireland and many other European countries including France, Ireland, Italy, Spain, Denmark and Norway.
In 1967 the MoT-free period was reduced from 10 to three years. Now, safer technology and improved manufacturing means new vehicles stay roadworthy for longer.
Andrew Jones said, ‘We have some of the safest roads in the world and MoT tests play an important role in ensuring the standard of vehicles on our roads.
‘New vehicles are much safer than they were 50 years ago and so it is only right we bring the MoT test up to date to help save motorists money where we can.’
It is a legal requirement that all vehicles are roadworthy, regardless of whether they have passed an MoT test and the content of the tests will not be changed. More than 2.2 million cars each year have to undergo their first MoT test, which costs owners a maximum of £54.85.
In the last 10 years, the number of three or four-year-old cars involved in accidents where a vehicle defect was a contributory factor has fallen by almost two thirds, from 155 in 2006 to 57 in 2015.
The most common reasons for cars to fail their first tests are faulty lights, according to the Driver and Vehicle Standards Agency (DVSA).
In addition, almost half of faults found during all MoT tests could be avoided by carrying out simple checks and maintenance, including replacing bulbs, checking tyres and oil as well as ensuring windscreen wipers work, and the DVSA is running an ongoing campaign to help motorists ensure their vehicles are safe at all times.
Subject to the public consultation, the changes could come into effect in 2018.
An insurance policy specifically for learner drivers has been introduced by Dayinsure, protecting the no claims bonus of the parent whose car they are driving.
Available to any permanent UK resident aged between 17 and 75 with a current provisional UK driving licence, protection can last from two hours up to five months.
Each learner must be accompanied by a qualified driver aged between 25 and 75 who has held a full UK licence for at least three years, and the vehicle in question must be UK-registered, unmodified and insured under a separate annual motor insurance policy, with a current market value of no more than £30,000.
Prices range from £38 for a week, £66 for a month or £226 for five months, while all cover protects the No Claims Discount of the annual policyholder.
Dayinsure.com CEO John Hatfield said, ‘Learning to drive can be a nerve-wracking experience, but research shows the more hours that learners spend behind the wheel with parents or relatives, the more likely they are to pass their test. We developed Dayinsure Learner to allow learners aged 17 and over to practise driving in a parent’s car whilst accompanied, without jeopardising their parent’s No Claims Discount.
‘That means it’s a win-win scenario for all concerned – peace of mind for mums and dads as they don’t need to worry about losing their NCD, while learners can concentrate on getting to grips with life on the road without any added pressure.’
ARTICLE CARE OF BODYSHOP MAGAZINE, WWW.BODYSHOPMAG.COM and the orginal article can be found here
Former employees of Enterprise-Rent-A-Car have been sentenced for conspiring to steal customer information that accident claims companies could use to make nuisance calls and sell on as personal injury claims.
Details of tens of thousands of customers from the car hire company were sold for hundreds of thousands of pounds, leading to unlawful contact from ‘ambulance chasers’ making cold calls about personal injury, in a scheme that ran for almost two and a half years.
Andrew Minty, Jamie Leong and Michelle Craddock, who at various times worked for Enterprise in Cardiff or Aldershot, all pleaded guilty at Winchester Crown Court on 4 January to conspiracy to commit offences under the Data Protection Act.
Minty was fined £7,500, which he has to pay within two years or face three months custody. Leong and Craddock, who had less involvement in the conspiracy and had either paid greater amounts of damages or been affected more by previous civil proceedings, were given 12 month conditional discharges but ordered to pay £3,000 and £1,200 in prosecution costs respectively.
As well as this week’s criminal proceedings brought by the Information Commissioner’s Office, Enterprise-Rent-A-Car has previously issued civil proceedings against the defendants. This resulted in the defendants paying the company £400,000 in civil compensation in total between them.
Steve Eckersley, ICO Head of Enforcement, said:
“Car rental companies have details of drivers who have been in a road accident and need to hire a vehicle whilst theirs is out of action. These details are valuable leads to companies which make money from encouraging accident victims to make claims.
“This prosecution was the result of an ICO investigation brought about after Enterprise found out what was happening. These individuals had a long running agreement to abuse the trust placed in them to look after precious personal details. The problem of data thieves trading personal information is very concerning and one we’re cracking down on.”
A fourth defendant remains wanted on a warrant.
Notes to Editors
The Information Commissioner’s Office upholds information rights in the public interest, promoting openness by public bodies and data privacy for individuals.
The ICO has specific responsibilities set out in the Data Protection Act 1998, the Freedom of Information Act 2000, Environmental Information Regulations 2004 and Privacy and Electronic Communications Regulations 2003.
The ICO can take action to change the behaviour of organisations and individuals that collect, use and keep personal information. This includes criminal prosecution, non-criminal enforcement and audit. The ICO has the power to impose a monetary penalty on a data controller of up to £500,000.
Anyone who processes personal information must comply with eight principles of the Data Protection Act, which make sure that personal information is:
fairly and lawfully processed;
processed for limited purposes;
adequate, relevant and not excessive;
accurate and up to date;
not kept for longer than is necessary;
processed in line with your rights;
not transferred to other countries without adequate protection.
The Privacy and Electronic Communications Regulations (PECR) sit alongside the Data Protection Act. They give people specific privacy rights in relation to electronic communications.
There are specific rules on:
marketing calls, emails, texts and faxes;
cookies (and similar technologies);
keeping communications services secure; and
customer privacy as regards traffic and location data, itemised billing, line identification, and directory listings.
We aim to help organisations comply with PECR and promote good practice by offering advice and guidance. We will take enforcement action against organisations that persistently ignore their obligations.
Civil Monetary Penalties (CMPs) are subject to a right of appeal to the (First-tier Tribunal) General Regulatory Chamber against the imposition of the monetary penalty and/or the amount of the penalty specified in the monetary penalty notice.
Any monetary penalty is paid into the Treasury’s Consolidated Fund and is not kept by the Information Commissioner’s Office (ICO).
To report a concern to the ICO telephone our helpline 0303 123 1113 or go to ico.org.uk/concerns/
"Although she neglected to speak about timescales, it was definitely a step in the right direction to hear of her ambition to avoid the economic and legal ‘cliff-edge’ that business fear so much." - Lawrence Finkle responds to Prime Minister Theresa May's plans for Brexit.Credit: PA
Article care of www.politicshome.com
Speaking to PoliticsHome, Lawrence Finkle of the Chartered Insurance Institute shares the insurance industry’s concerns following worrying member survey results.
Every year since 2011, the Chartered Insurance Institute (CII) and the Centre for Economic and Business Research have conducted an economic temperature check of CII members measured against economic, business and employment prospects indices.
The survey asked CII members for their views on the UK’s economic, business and employment prospects, with an additional section on the UK’s decision to leave the EU.
The annual survey has found that optimism in the UK economy had been building year on year but this time around, in the wake of the decision to leave the European Union, the results showed an unprecedented and alarming drop in confidence.
The latest survey reveals that 48% of CII’s membership expects the UK economy to deteriorate in 2017 - nine times higher than a year ago.
On top of this, only 23% of their membership expects the economy to improve, which is a dramatic reduction from the 67% who were confident in the economic outlook for the country in the survey conducted in 2015.
Lawrence Finkle, CII’s Public Affairs Executive, told PoliticsHome that the results came as a surprise.
“Given the political upheaval of 2016 I perhaps didn't expect that economic confidence would rise at the same level we have become accustomed to over the past few years, but I certainly did not expect this dramatic fall.
“These results are comprehensive and reflective of the profession as a whole – the drop in confidence has affected at all levels of seniority We really think this is something that should be of concern to the market, to the wider financial services and to the Treasury. If this is reflected across the sector then surely it raises alarm bells.”
The general feeling of uncertainty that clouded CII members’ expectations of the direction of the UK economy ahead of negotiations to leave the EU was revealed elsewhere in the survey too. While different subs-sectors within the membership prioritised issues such as passporting and membership of the single market to varying degrees, it was ‘general economic certainty for future planning’ that unified the profession in attaching importance attached to it.
“The divergence between business and economic outlook for the whole economy would suggest our members have more faith in their own businesses to navigate this uncertainty than they do in the direction of the macro economy.”
In a bid to mitigate this uncertainty, the CII have drawn up their own recommendations, published yesterday morning.
The CII joined other bodies in the sector to call for an early commitment from Government to secure a transitional implementation period between the UK’s departure from the EU and the UK’s new relationship outside of the bloc, to provide the conditions for as much business continuity as possible for the insurance sector.
“We feel that it would ultimately be to the benefit of the livelihoods and businesses that the insurance sector protects.”
“We fear that without alleviating this uncertainty that clouds our members’ faith in the direction of the UK economy, we will be in a position where decisions are taken pre-emptively based on a worst-case scenario that would ultimately be to the detriment of the consumer. We are monitoring this closely. The news that Lloyd's of London have plans to relocate some of their operations to the EU is an indication of how much disruption areas within the sector expect there to be.
“If we start seeing similar upheavals across the sector then there are likely to be knock on consequences for the consumer in one way or another, whether that is added costs, or access to products.. It’s still too early to tell, but I think it should be a warning sign to the Government, to the Treasury and those negotiating on the sector's behalf.”
Although the sharp downturn in economic confidence among the CII membership for the year ahead raises serious questions over the Government’s decision to refrain from making a substantial disclosure of the UK’s negotiating objectives to business and the public, Mr Finkle admits that Theresa May couldn’t have given much more detail on transitional arrangements than she revealed in her keynote speech yesterday.
He concluded by saying: “Yesterday we called on Theresa May to make an early commitment to a transitional arrangement as our membership could not afford to adopt a ‘wait and see’ approach to the UK’s future relationship with the EU indefinitely. Although she neglected to speak about timescales, it was definitely a step in the right direction to hear of her ambition to avoid the economic and legal ‘cliff-edge’ that business fear so much - a nightmare scenario where the UK is a member of the European Union one day and the next, in a totally new and unprecedented regulatory environment without any opportunity to prepare or to plan.
The full CII member economic outlook and Brexit survey is available to read here.
The original article above can be found here
Chartered Insurance Institute calls for defined transitional arrangements as economic confidence plummets across insurance profession
As Prime Minister Theresa May is set to announce more detail on preparations for Brexit negotiations in her keynote speech today, the Chartered Insurance Institute (CII) urges the Government to make an early commitment to transitional arrangements following the UK’s departure from the EU.
Economic confidence across the insurance profession falls to its lowest level since 2011
Nearly half (48%) of those working in insurance expect the economy to deteriorate in 2017
92% of those in the Lloyd’s market believe securing EU passporting rights should be a top priority in Brexit negotiations
The CII calls on Theresa May to make early commitment to transition arrangements post-Brexit
New research from the CII Member Economic outlook and Brexit survey published today highlights that economic and business confidence across the insurance and financial planning profession has plummeted to its lowest levels since 2011. The optimism in the UK economy that had been building in recent years has fallen off a ‘cliff edge’ to provide the greatest one-year fall since records were first collected by the CII.
Almost half (48%) of those working in insurance expect the UK economy to deteriorate over the next 12 months, nearly ten times higher than a year ago (5%). Historically, the index has been much less volatile and so today’s research represents a significant change in confidence.
Within the insurance profession, those working in the Lloyd’s market are the least optimistic about the year ahead. Over a third (37%) expect the economic situation to worsen and only a fifth (20%) think it will improve (GI market: 20% and 33% respectively). The research revealed that those working in the London market were the least likely to have voted to leave the EU and value the benefits of the single market. In fact, the vast majority (92%) believe that passporting rights should be a top priority in the Brexit negotiations for a smooth transition.
While there may be differences in opinion between the sub-sectors of the insurance profession, there is widespread unease about what will happen to the British economy following Brexit. Nearly half (45%) of the CII’s membership say they are concerned that the insurance and financial planning sector will not be well represented in negotiations, which will have a detrimental impact on both the profession and its customers. All of those surveyed agreed that securing economic certainty for future planning was the most important element of the Brexit negotiations above all other issues.
Keith Richards, Managing Director of Engagement at the CII, said:
“We call on Theresa May today to make an early commitment to a transition arrangement to bridge the transfer from the UK’s membership of the EU to its new trading relationship outside of the bloc. This commitment and clarity will help alleviate this uncertainty and provide the conditions for as much business continuity as possible for the sector.
“The insurance profession cannot adopt a ‘wait and see’ approach to the UK’s future relationship with the EU indefinitely. Publishing specific proposals regarding what form transitional arrangements should take before beginning negotiations, and to make obtaining them an early and important objective once negotiations have commenced, would discourage businesses from pre-emptively making changes based on a ‘worst-case’ scenario. We have major concerns over what the impact of this uncertainty could mean for the consumer and urge the government to make an early commitment to a transition arrangement.”
The CII Member Economic outlook and Brexit survey is the fifth annual wave of the CII Member Survey conducted in partnership with the Centre for Economic and Business Research (Cebr). Analysis is measured against economic, business and employment prospects indices first developed in 2011. The responses from 3,711 CII members were received between 4 - 21 Nov 2016.
Article is care of www.politicshome.com and the original article can be found here
Insurers will be responsible for paying compensation directly to "innocent victims" of collisions involving driverless cars, but will be able to recover those costs from the vehicle manufacturer if the crash was caused by a fault with their technology, under new plans outlined in the UK.
The "single insurer model" backed by the UK government represents a change to the draft policy it had proposed in a consultation last year on the topic of the regulation of driverless cars. Its new policy, detailed in a paper containing its response to the feedback it received to its consultation (19-page / 430KB PDF), has been welcomed by UK insurers.
With its new policy, the government has resisted calls to update existing product liability law to account for the introduction of driverless cars on to UK roads. Instead, it said motor insurance laws would be changed to account for the use of autonomous vehicles (AVs).
"We now propose to supplement the compulsory motor insurance (Part VI of the Road Traffic Act 1988) to include the use of AVs, and establish a single insurer model, where an insurer covers both the driver’s use of the vehicle and the AV technology," the government said. "This single insurer model would ensure that the driver is covered both when they are driving, and when they have activated the ADF (automated driving function). In the event of a collision while the ADF was active, the innocent victim (both inside and/or outside the vehicle) would be able to claim from the insurer."
"When a crash is determined to have been caused by an AV, where the ADF was active, the insurer would be liable to pay compensation to the innocent third party victim. They would also pay out to the motorist if injured in the vehicle if the ADF were active. The insurer will only be able to exclude this liability to the injured AV motorist if the crash resulted from the motorist having made unauthorised modifications to their vehicle’s operating system, or failing to install required updates to the software for the vehicle’s operating system. In addition, because the new statutory liability will be otherwise unconditional, the insurer will not be able to exclude payment of compensation to a victim if the AV caused the crash as a result of it being hacked," it said.
"Where the manufacturer is found to be liable, the insurer will be able to recover against the manufacturer under existing common law and product liability laws. It is possible that some cases will go to court, though over time we expect insurers and manufacturers will develop processes to handle most recovery claims quickly and easily. And, in any case, we do not consider it to be in a manufacturer’s commercial interest to be unhelpful to insurers in determining liability or paying recovery claims; ultimately, insurers could potentially cease offering insurance products for the manufacturer’s vehicles if their route to recovery was consistently blocked," it said.
The government said the objective of its policy on insurance issues relating to driverless cars is to enable the "innocent victim of a collision involving an automated vehicle" to receive compensation quickly after those incidents occur.
Ben Howarth, the Association of British Insurers' senior policy adviser on motor and liability, welcomed the plans, which the government intends to flesh out in the Modern Transport Bill, which is to be introduced before parliament.
"Automated vehicles have the potential to revolutionise our transport systems and dramatically improve road safety, but it’s right the insurance system is developed in parallel to give motorists confidence in using them," Howarth said.
In its paper, the government said it would press ahead with a "rolling programme of regulatory reform" to facilitate the use of driverless cars in the UK. It defended its "step-by-step approach", which it said most consultation respondents favour, and said there are good reasons for not regulating "for future waves of technology now".
"Acting for technologies when we do not know how they will perform risks delaying their arrival by regulating ineffectively, risking UK competitiveness," the government said. "The government does recognise the call for it to be ambitious, however – and will continue to work with industry to establish which technologies are near to market so that we are able to facilitate their safe introduction to UK roads as soon as they arrive to market."
"By taking a step-by-step approach, and regulating in waves of reform, we will be able to learn important lessons from real-life experiences of driving of increasingly automated vehicles. We can then apply these lessons when considering what further changes will be required and are appropriate to allow the safe use of technology that is yet to be developed. This will complement the lessons learnt from testing fully automated vehicles both on test tracks and public roads, providing the government with the evidence on which to support future policy decisions," it said.
This Article is care of Pinson Mason solicitors, the original article and other like it can be found here .
The e county court has overturned a decision to penalise a failed personal injury claimant with an order of fundamental dishonesty against her.
His Honour Judge Hodge QC, sitting at Manchester Civil Justice Centre (pictured), said District Judge Khan ‘went too far’ in penalising a woman who had made a claim against the restaurant chain La Tasca after claiming to have suffered a fall at its Trafford Centre branch in 2014.
Khan had ruled that the case involved fundamental dishonesty – and ordered the claimant to pay the defendant’s fixed costs of £7,210.
Khan said he did not believe the claimant’s version of events after finding inconsistencies in her story and concluded that it was difficult to see anything other than a dishonest claim.
But on appeal Hodge said that while the district judge was entitled to reject the claim, he was wrong to rule automatically that no accident had taken place and that the claim was a fabrication.
‘[The] conclusion that the claim was fundamentally dishonest falls well outside the ambit of reasonable judicial decision-making,’ said Hodge in Meadows v La Tasca (as yet unpublished).
‘It was not appropriate for the district judge to find that the accident had not happened in the circumstances described. He should have limited his decision… to a decision simply that the claimant had not made out her case on the evidence before him.’
Meadows had claimed between £1,000 and £10,000 for pain, suffering and loss of amenity when the matter came to trial in February.
In a judgment given on the day of trial, Khan said Edwards’ evidence and that of her dining partner was ‘riddled with inconsistencies’, in the mechanics of the fall, the location of the incident, and what they had said in the immediate aftermath.
At the end of his closing submissions, Harry East of Oriel Chambers, instructed by Plexus Law Limited, asked the court to consider whether there were grounds for an application of the fundamental dishonesty defence introduced under the Criminal Justice and Courts Act 2015.
The claimant, represented by Manchester firm Express Solicitors, said fundamental dishonesty had not been pleaded previously, which meant Meadows had not been given the chance to respond to it.
In their appeal, Meadows’ lawyers said the district judge was wrong to conclude the claim was fundamentally dishonest based on the evidence he had seen.
Hodge agreed that the definition of fundamental dishonesty should be something ‘going to the root of the matter’ and not a collateral matter. He said dishonesty could be differentiated to account for cases which were not ‘fundamental’ and so did not result in exposure to costs liability.
Hodge added: ‘The inconsistencies and curiosities highlighted by the judge did not entitle him to go further and to find that the claim had been fabricated, and thus was fundamentally dishonest.’
The costs order against the claimant was reversed and the defendant ordered to pay an additional £12,500 for the costs of the appeal.
The judgment is the latest attempt by the court to define what fundamental dishonesty constitutes, with both claimants and defendants having secured rulings in their favour in the last year.
Article care of the law gazette and can be found here
Can the suggestion of #fraud undermine a legitimate claim?unless the #fraud is proven the court's say no. Da Costa & Sargaco court of appeal case on fraud.
A circuit judge has recognised that fundamentally dishonest claims include claims where someone other than the claimant has been dishonest.
Menary v Darnton (yet to be published) concerned a whiplash claim. The claimant said a motorcyclist rode into the rear of his car, causing injury and loss. The motorcyclist said no collision took place—his bike fell to the ground while he took evasive action. The insurers argued the claim was entirely fabricated since no impact took place.
The county court at first instance found there was no collision but also that there was no fundamental dishonesty since the claimant had a history of back pain and so had not lied to the doctor.
On appeal to a circuit judge, Judge Hughes found the initial judgment incorrect and ruled that, by presenting a claim when there was no accident, there was clearly fundamental dishonesty.
Judge Hughes found that “the documents produced were indirectly manufactured by the claimant in pursuit of a claim which had no basis in fact or reality”.
“He did not invent an additional head of damage in an otherwise legitimate claim. It was dishonest in inception and pursued with the intention to take money from the defendant’s insurers,” he added.
According to Keoghs solicitors, who acted for Aviva, the insurer, the decision sets a precedent that whether the claim or the claimant is fundamentally dishonest, the outcome should be the same.
Damian Ward, fraud partner at Keoghs, said: “This is a significant judgment which now allows us to say that dishonest claims must result in a finding of fundamental dishonesty and therefore the dis-application of qualified one-way costs shifting, allowing costs to be enforced. If in rare circumstances that dishonesty does not taint the claimant, the enabler is then in the firing line to pay those costs.”
Article care of the new law journal, and can be found here https://www.newlawjournal.co.uk/content/dishonesty-defined-court
Looking at confused.com website it shows a 14% increase!though the increase was lower than the previous year.
Comprehensive car insurance premiums have continued to rise during the final quarter of 2016, with motorists now paying on average £95, or 14%, more than they were this time last year.
The figures came from the latest Confused.com Car Insurance Price Index in association with Willis Towers Watson.
According to the research, which is based on price data compiled from almost two million customer quotes, the result represents a 4.1% quarterly increase (or £30).
This compares with the 6.9% quarterly increase (£43) for the same period in 2015.
Comprehensive cover prices have been steadily increasing since 2014, with figures from the Price Index showing monthly price increases recorded in 10 of the last 12 months of 2016.
Willis Towers Watson, stated that although these latest quarterly figures suggest a continuing upward trend for 2017, they also indicate a possible slowdown in the actual rate at which premiums are rising.
Stephen Jones, UK Head of P&C Pricing at Willis Towers Watson, commented: "It's not unusual for price increases to soften around the end of the year, with an annual increase of 14% in the final quarter of 2016 compared to the 19% rise we saw six months earlier.
"However, the lower Q4 increase relative to that in 2015 may herald something of an underlying slowdown in the rate of premium increases seen following recent exceptional influences on repair costs."
He continued: "In 2017, however, repair cost inflation is expected to remain an influence on premiums, especially given exchange rate movements following the Brexit vote and that insurance premium tax will increase from 10% to 12% in June, further pushing up costs for consumers."
The increase in the fourth quarter of 2016 means that the average premium for an annual comprehensive car insurance policy has now reached £767.
The cost of third party, fire and theft (TPFT) policies has risen at a similar pace, with prices going up by 4.7% in the last quarter, increasing the average quoted premium by £59 to £1311 - an annual increase of 16.1%.
The findings detailed that price increases in the final quarter in 2016 affected all vehicle types and reflected a wide range of age and regional premium movements.
The cost of comprehensive car insurance rose across the UK with every region experiencing double digit increases over the year.
Drivers in the East and North East of Scotland were worst off with their insurance premiums rising on average by 20%, an annual increase of £94 to £563.
More locally focused data showed drivers in Swindon were hit by one of the highest increases in England, 21% to £592, compared with Uxbridge which experienced the lowest annual rise of 5% to £1266.
Younger drivers aged between 17 and 20 have experienced the lowest increases over the last 12 months.
In particular 18-year-olds experienced the lowest annual increase of 4.7% to £2109 whilst almost every other age group was affected by double-digit increases in 2016.
Steve Fletcher, head of data services at Confused added: "Although the increase isn't as drastic as the last time the industry went through rapid price rises, it is still expected to continue climbing.
"There are new highs for third party, fire and theft cover while comprehensive has remained steady."
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