Proposed changes to the rules for personal injury claims will lead to more pain and stress for those who are already ill, argues Linda Lee

The Department for Constitutional Affairs has announced that it is to research the possibility of raising the small claims court personal injury threshold from £1,000 to £5,000.


Currently, any claim that could lead to a payment of less than £1,000 for pain and suffering is subject to the small claims procedure, where no legal costs are recoverable. This may result in lay people struggling to prove the real value of their claims as they tangle with the heavy mix of legal and medical jargon. Nowhere is this more apparent than in the field of clinical negligence. Although it is often difficult to say at the outset whether there was negligence, it is even more difficult to establish the effect of that negligence and the likely value of the claim.


Consider the plight of someone who has been diagnosed with a fatal illness - usually cancer - and who suspects the diagnosis should have been made far earlier.


The advice at the outset would be: we suspect there may have been negligence but we will need expert evidence to establish whether that is the case. Where there has been a long history of treatment prior to the diagnosis being made, the expert will need to indicate when the diagnosis should have been made. A second expert will then have to determine whether or not diagnosis at that point would have resulted in a cure.


In addition to all of the risks that the claimant normally faces in investigating cases of this type, he would also have to be warned that should the expert evidence conclude that on balance of probabilities his prognosis has not been affected to the extent that his life would have been saved or that far less invasive treatment would have been required, he will not recover the majority of his costs spent investigating his claim. This despite proving blame and direct consequences of the fault.


If the evidence suggests he suffered unnecessarily for a period of, say, a year before diagnosis, he will face a struggle to obtain compensation in the small claims court without assistance and, typically, loss of palliative care is worth in the region of £3,000 to £4,000 for pain and suffering.


Alternatively, he may decide at the outset to try to seek compensation from a defendant-operated scheme (if these are ultimately established), or face bringing a claim in the small- claims court unaided for what potentially could be a fraction of the value of the claim.


There have been several cases over the years where the claimant has been assured by those treating him or by the hospital administrators in the process of a complaints procedure that nothing more could have been done. But this is not always the case and further investigation reveals the patient has been mislead.


So the government and the court cannot seek to rely on the defendant's conscience in pointing out to a claimant that he and his dependants may have a claim for loss of earnings, bereavement allowances and care costs of a fatal illness.


Any claim of small value can be complex and it would seem unfair to pit that injured person against insured defendants who are almost always legally represented in a small claims court.


The Lord Chancellor has repeatedly stated that people who have genuine claims should be able to recover the compensation they are due.


Raising the small claims-court personal injury threshold to £5,000 is manifestly unfair and must be resisted.


Linda Lee is a medical negligence associate solicitor at the Northampton office of Shoosmiths and a Law Society Council member