Suspend your disbelief for a moment.
Imagine it’s the final of the football World Cup 2014, Germany have not scored a late extra-time winner against Argentina. Instead, the match goes to penalties, tied at 0-0.
Each side scores in turn from the spot until Lionel Messi hits the bar with Argentina’s fifth effort. It leaves Thomas Müller with the chance to win the cup for Germany, with his team’s fifth penalty.
As the centre forward begins the long walk from the centre circle to the penalty area, the goalkeepers for each team appear to be conferring. Suddenly, they swap shirts and, as the ball is placed on the penalty spot, it’s not Argentina’s Sergio Romero in goal but instead his German counterpart, Manuel Neuer.
Of course, Neuer was shortlisted for the FIFA Ballon d’Or 2014. Though he came third, behind Messi and the winner, Cristiano Ronaldo, presumably, his argument was that Argentina would be better off with the “best” keeper in the world in goal for the crucial penalty.
What could possibly go wrong for Argentina?
Back in the real world
So, it’s a far-fetched story.
Even people who don’t follow football or know the rules in detail would be aware that something was wrong. We all understand that, where penalty kicks are concerned, one of the fundamentals is that the penalty taker faces a goalkeeper from the opposing team, not his own team.
Fair play and personal injury claims
A problem with personal injury claims is that you, the injured person, don’t know what is “fair play”. You don’t know the rules of the game. It’s probably the first time you’ve had to take part.
For most personal injury claims, it’s an insurance company that foots the cost. If you’ve been injured in an accident and another person was to blame, they may well notify their insurers about it. If those insurers decide that their insured was probably to blame, they may contact you and offer to “help” you sort out your claim.
They will make it appear as though this is normal practice. At a time when you are injured – and may be off work, losing earnings as well – it’s easy to welcome the insurers’ proactive approach and apparent concern for your welfare.
But you would be wrong to think it’s all for your benefit. If you accept the insurers’ offer of assistance, it’s as likely to be in your best interests as the goalkeeper swap described above was likely to be in Argentina’s best interests.
Third party capture in action
The insurers’ way of working has come to be known as “Third Party Capture” (insurers call it “Third Party Assistance”). Here’s a recent (anonymised) example from our own files.
The injured person was a passenger in a vehicle driven by another member of his family. The accident was probably the driver’s fault. The driver reported the accident to his insurers.
Within days of the accident, the injured person received a letter from the insurers, containing the following:
“We’re sorry to hear you were injured in the incident with our customer’s vehicle.
We know this can be a distressing time so we’d like to help you by dealing with your injury claim for you. A few benefits of dealing directly with us for compensation are:
- Solicitors can take up to 25% of your compensation as a fee; the service we provide is free and you will receive 100% of the compensation.
- We’ll make the process as convenient for you as we can, including limiting the number of people you’ll have to deal with.
- You’ll stay free to seek your own legal advice at any stage (you can contact the Citizens’ Advice Bureau for further information).
- We’ll only get in touch by your preferred method of communication, for example, phone you on your mobile / landline or email you.
- A dedicated injury consultant will handle your claim, keep in contact with you and explain the process.
We’re members of the Association of British Insurers (ABI). The ABI has a General Insurance Claims Code which sets out the standards of service you can expect when you make a claim.”
Why you should decline the insurers’ offer
The letter gives the impression that the insurer is on the side of the injured person when that cannot be the case. There is an obvious conflict of interest.
In footballing terms, it’s like Argentina allowing Thomas Müller to take their “must score” penalty described above.
Some statements in the letter are, in our view, likely to confuse and mislead readers.
Solicitors can take up to 25% of your compensation as a fee?
Yes, they can but, in Scotland, solicitors would rarely take more than 20% of your compensation to meet legal (or insurance) costs. And, as we repeatedly point out, many solicitors would provide a service leaving you with 100% of your compensation.
You’ll stay free to seek your own legal advice at any stage?
Okay, but the mention of the CAB implies that that is all the legal advice you could possibly need (i.e. it’s not likely to be complicated enough for you to need a solicitor). Our experience is that, if you were to ask the CAB about a personal injury claim, they would recommend that you contact a solicitor.
ABI Members subject to a Claims Code?
Yes, but the insurers are still on the opposing team. Their credentials for acting in your best interests in a personal injury claim should be about as convincing as Manuel Neuer’s catalogue of winner’s medals and awards should persuade you he’s the right man to face Thomas Müller’s penalty.
The Association of Personal Injury Lawyers (APIL) have warned consumers to “beware of the wolf in sheep’s clothing”: the third party insurer offering to “help” you with your personal injury claim. We hope you can see why.
Don’t be lured by the apparent convenience of the third party insurer’s offer to settle your claim directly with you. Any “convenience” is all theirs.
Get advice from a specialist personal injury solicitor as soon as possible. It need not result in any significant loss of compensation to pay costs (there may be no loss at all). You need someone expert and experienced on your side, protecting your interests. The third party insurers cannot honestly guarantee to fulfil that role.
The penalty you pay for the third party insurers helping you with your claim is that you lose out on having an impartial expert to advise you.
How we can help
If you have any questions about the issues covered in this article or any aspect of our personal injury claim services, please get in touch with us. All initial enquiries are free of charge and without obligation.