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Brexit and personal injury claims

View profile for Clare Gammond
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No-deal Brexit: FCA regulated firms should ensure that they are prepared for all outcomes

On Tuesday 12th March 2019, the UK Parliament will again vote on Prime Minister Theresa May’s Brexit deal. If it gets voted down for a second time, the following day MPs will vote on whether the UK should leave the EU on 29th March 2019 without a deal. It is unlikely that a no deal Brexit will ever be backed by a majority in Parliament so on 14th March 2019, MPs will vote on whether the government should instead ask for a short extension of the time period currently allowed by Article 50 of the Lisbon Treaty.

EU leaders would then vote on the UK’s request for more time on 21st March 2019. Alternatively, the EU might only be willing to offer us a much longer postponement. If this happens, Mrs May could give Parliament a third opportunity to vote on the deal to try and end the deadlock. If in the meantime the EU softens its stance on the Irish backstop question (not looking promising given the stalemate so far) then it could well be third time lucky for the Prime Minister. Another option would be to hold a second referendum.

How is Brexit relevant to personal injury claims?

Solicitors and barristers have been applying laws which are European in origin to personal injury cases for many years. Some key examples in personal injury law include;

  • Health and Safety at Work Act  
  • Consumer Protection Act  
  • The General Product Safety Regulations
  • Control of Substances Hazardous to Health Regulations
  • Noise at Work Regulations & the Control of Noise at Work Regulations
  • Control of Asbestos Regulations
  • Control of Vibration at Work Regulations
  • Health and Safety (Display Screen Equipment) Regulations
  • Manual Handling Operations Regulations
  • Management of Health and Safety at Work Regulations
  • Personal Protective Equipment at Work Regulations
  • Work at Height Regulations
  • Provision and Use of Work Equipment Regulations
  • The Package Travel, Package Holidays and Package Tours Regulations
  • Package Travel and Linked Travel Arrangements
  • The Transfer of Undertakings (Protection of Employment) Regulations

Should the UK government wish to amend or repeal any of these laws, they would have to do so by means of introducing new legislation. Post-Brexit, whenever the EU introduces new laws to increase health and safety protections for their citizens, the UK government would have a choice on whether to do the same. Personal injury lawyers acting for claimants will be keen to ensure no ‘legislation bonfire’ takes place.

What if I suffer a personal injury in Europe after Brexit?

Currently, claims involving accidents or illnesses abroad are normally subject to the law of the EU country in which the incident took place, so liability is determined according to that country’s safety standards rather than the UK’s. Claimants can bring a claim when they return home and also bring court proceedings here, as any judgment they obtain against the at fault party’s insurer can be enforced in the EU country.

A UK driver involved in a road traffic accident in the EU can submit details of their personal injury claim to a agent of the at fault driver’s insurer based in this country. Following a no deal Brexit, the Motor Insurance Directives and decisions of the European Court of Justice that have facilitated this process will unfortunately no longer apply. The Bar Council have called on the government to take steps to ensure UK judgments can still be enforced in Europe, and the Pan European Organisation of Personal Injury Lawyers (PEOPIL) recently met with the Ministry of Justice and Department of Transport to discuss how our current arrangements could be maintained.

Victims of road traffic accidents involving uninsured or untraced drivers may also find other countries don’t have a guarantee fund like our Motor Insurer’s Bureau (MIB). For example, if you were to have an accident in France and the third party driver is uninsured, there is no back up fund in that country you can claim from. The MIB are currently working on signing compensation agreements with EU countries and the current list of signatories can be found here.

Due to the ongoing uncertainty, drivers are being advised by the government to ask their insurers for a green card to carry as evidence of their own cover if they are planning to drive in Europe after Brexit. Another recommendation is to apply for an international driving permit available from the Post Office.

What about the European Health Insurance Card (EHIC) scheme?

This scheme currently allows UK residents on holiday to call on state healthcare in other countries at a reduced cost, sometimes free of charge, should they fall ill or suffer an accident. UK students on courses abroad also benefit from the scheme which covers the following countries;

EU member states - Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden.

European Economic Area members (EEA) - the above member states plus Iceland, Liechtenstein and Norway. Switzerland is also included (neither an EU nor EEA member but part of the single market).

If we leave the EU without a deal, then the EHIC scheme will probably come to an end which may increase the cost of travel insurance for holidaymakers. UK pensioners currently living in another member state, however, will still benefit from the scheme when on holiday in any of the above countries. It is important to note the EHIC scheme should never be seen as a substitute for having travel insurance because it only covers treatment costs that are ‘medically necessary’ until your return home. The EHIC scheme also doesn’t apply to cruise holidays.

What will happen to the appeals process?

Appeals to the UK Supreme Court will be the final opportunity for both claimants and defendants to challenge court decisions made in personal injury cases. The judiciary will no longer be able to refer complex cases to the European Court of Justice for preliminary rulings, an advisory process designed to assist judges on how to properly interpret EU law.

Our personal injury team are keeping a close eye on Brexit developments to help ensure we can advise clients of the potential implications for their claims.

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