Effect of Insurance on Society (in Ireland)

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1 Effect of Insurance on Society (in Ireland) Presented to the Society of Actuaries in Ireland Marian Keane FSAI Patrick Grealy FSAI November 2002

2 1. Background Since its early days, non-life insurance has brought many benefits to society, including: a) Peace of mind: The insured replaces the uncertainty of loss with the certainty of a known premium. b) Efficient use of resources: With insurance, businesses are able to free up capital that would otherwise have to be locked up to guard against contingencies. Thus insurance encourages the growth of industry. c) Support trade: In the 17 th century, the marine trade was boosted by the development of insurance at Lloyds. Today, banks and other financial institutions require the security of insurance in financing international trade. Similarly, mortgage providers require fire insurance for housing loans. d) Loss control: The system of rating, which rewards risk prevention measures with lower premiums, encourages loss prevention. Workplaces implement health and safety measures, drivers drive more carefully, homeowners install burglar alarms and smoke detectors. Society would suffer greater losses if it were not for these measures. As well as the above benefits, however, insurance has also brought some downsides. One of these is that it has made our society more litigious. The rest of this paper will focus on: a) Why insurance has lead to a more litigious society b) Examples of the litigious nature of our society c) Effects of the compensation culture on our society d) Why the situation is particularly bad in Ireland e) Can anything be done? f) Role of actuaries Page 2

3 Why insurance has lead to a more litigious society The insurance industry has played a big part in the development of the compensation culture. This is because, in most personal injury and other liability cases, insurance companies pay for the damages and have become administrators of the system. Often, the solicitor representing the injured party will never speak to the negligent person apart from finding out the name of their insurance company. The insurers decide whether or not to admit liability, whether or not to settle, and how much to offer. These decisions are based on commercial reasons. One commercial decision often made by insurance companies is to settle outside court, whether there is blame or not, in order to save the expense of mounting a defence in court. This practice encourages opportunistic claims there is little to be lost in having a go. Without insurance, an innocent defendant would possibly fight harder to clear his name and protect his/her own level of wealth. Where claims do go to court, the existence of insurance cover can lead to higher award payments. This is often referred to the Deep pocket Syndrome where those who have wealth or insurance assets are targeted because they are the only entity with the ability to pay. Without insurance, the claim amount would be capped at the wealth of the defendant with the balance of costs being picked up by the socials security system where one exists. Where the defendant has insurance cover, the court may not consider the detrimental effect on society of awarding unnecessarily high amounts insurance companies are often perceived as bottomless pits of money. Page 3

4 2. Examples of the litigious nature of Irish society Many of us have heard of the case of the woman in the USA who was awarded US$3 million because the coffee served to her by McDonalds was too hot and caused scalding injuries to her when she spilled it on herself. But is Irish society following America s lead? A 1999 IBEC report on Personal Injury Compensation gave an example of an award of 12,000 to a man who cycled through a warning tape while drunk. 1 The same IBEC report showed that Irish workers are twice as likely to claim for injury as workers in Britain, despite us having the lowest workplace accident rate in Europe, less than half that of the U.K. 2 The 2003 Golden Pages for the Dublin (01) telephone area lists 24 solicitors who advertise that they offer a no win no fee service for Personal Injury claims, and a further 23 offer the first consultation free for injury cases. The advertisements ask readers whether they ve experienced Slip and Fall, Pedestrian Accidents or Accidents at Work and promise that Where there s blame there s a claim and Most claims settled out of court. (These type of advertisements will not appear in future directories as the Law Society announced on 8 October 2002 that it would outlaw this no foal no fee advertising among its members.) Page 4

5 3. Negative Effects of the Compensation Culture on our society a) Breakdown of the community People are slow to trust one another or to help one another for fear of being sued. For example, Teachers are under instructions from their unions not to even put a sticking plaster on an injured child s finger, following a case where a teacher was sued because a finger injury he had attended to had become infected. 3 Doctors refer more and more cases to Casualty or X-ray departments for fear of negligence claims against them a practice which is increasingly clogging up the hospitals. Voluntary organizations are unable to organize activities for young people through lack of insurance cover; and Local authorities cut back on non-essential services such as children s playgrounds. b) High cost of Motor Insurance The cost of motor insurance in Ireland has gained a lot of media attention recently with the publication of the MIAB report. Irish motorists, particularly young drivers, are being charged much more than what their counterparts in other countries would pay. Cover is often unavailable, particularly for young drivers. A report by the DETE in March 2001 showed that motor vehicle premium costs in Ireland as a percentage of GDP are the second highest, after the United States, of the countries examined, and as a percentage of employee earnings, they are twice the average level of the other countries, excluding the United States. 4 c) Expenses Legal, Medical and Insurer s administration adding to the cost of claims For claims under 15,000, 64% of the cost is taken up by the various professionals (for large claims the figure is 47%). 5 The norm throughout Europe is 10% and in Sweden it is only 2%. Page 5

6 d) Climate of dishonesty and opportunism In a press release on 25 October 2002, the Alliance for Insurance Reform (AIR) stated that In some cases, one in every two people making claims have previously made a number of similar claims for slips and falls. There are individuals in Ireland using insurance as a compo lotto. The AIR estimates, based on their member s claims history, that 75% of total claims made in Ireland are either exaggerated or bogus with 25% completely bogus and 50% exaggerated. 6 The chairman of AIR, Pat McDonagh, has first hand experience of bogus claims as managing director of Supermac's. A young man took a 38,000 claim against Supermac s for slipping on water near the sinks in the toilet area. He had been captured on video practicing falls and spilling water on the floor. The practice of settling claims out of court encourages the escalation of bogus claims, as the trauma of giving evidence is not a deterrent. e) Cost on companies Insurance for businesses has also become unsustainably expensive or in some cases, completely unavailable. In most businesses, insurance is now the second-highest cost. 7 One AIR member, John Fielding of JF Engineering, reported an insurance increase of 1,575% in two years. When I started my business in 2000, I paid around IR 2,000 for insurance. In 2001 it was approximately IR 7,000. This year I was asked for 40,000 which was eventually beaten down to 27,500. I had to borrow money to pay for this, and if the premium is similar next year, I won t be in business and my six employees will be out of jobs said Mr Fielding. 8 Inability to obtain insurance cover is also a problem for a growing number of companies, particularly smaller companies in high-risk categories. According to the Small Firms Association, 92% of small companies say insurance costs are their biggest threat and the SFA can identify over 1,700 job losses associated with increases in insurance costs. 9 Pat Delaney, Director of the Small Firms Association, estimates that the hidden costs of personal injury claims are between two and three times the visible costs. Hidden costs include the cost of lost production, administrative costs associated with accident investigation, replacement staff costs and sick pay schemes. The consequences of occupational accidents can also result in failure to complete orders, meet delivery times, and a loss of goodwill to small businesses. 10 Foreign investors are aware of these issues and may in future shy away from Ireland in favour of less litigious environments. Page 6

7 f) Cost to Government/Local Authorities The compensation culture results in exaggerated claims to Local Authorities. C.I.E. pay out 24 million annually in compensation to members of the public purportedly injured. They estimate that perhaps as many as 50% of these cases are exaggerated. 11 Personal injury cases in Ireland often take years to settle. This creates a major disincentive for rehabilitation and recovery. Many workers become unemployable because of long absences from the workforce, creating an additional burden for the State. g) Diminished responsibility The compensation culture has created a climate in which people take less responsibility for their own actions. People now look for someone else to blame for their mishaps, because, as the solicitors advertise, Where there s blame there s a claim. As Michael McDowell S.C. asked at an IBEC seminar Have we, by a huge self deception, created a system of compensation based on wholly unreal and artificial duties of care by which none of us expect to abide by privately? 12 Page 7

8 4. Some Positive Effects of the Compensation Culture on our society a) Culture of Safety Because of the risk of litigation, individuals and companies are forced to take more precautions and act more carefully. This is borne out by the statistic that Ireland has the lowest workplace accident rate in Europe 13. b) Fairer Society In a fair and just society, wrongdoers are punished and victims are compensated for their loss. The personal injury compensation system in Ireland achieves this to a certain extent. As Justice O Flaherty said The personal injury compensation system recognizes the premium which a democratic society places upon the citizen s interest in the recognition and protection of his right to bodily integrity. 14 Page 8

9 5. Why the situation is particularly bad in Ireland The following factors have contributed to the rise of the compensation culture in Ireland: Generous level of damages Ireland has the highest average personal injury damage of the 12 EU countries 15 The McEneaney judgement increased costs by ruling that the discount rate be reduced from 4% to 2.5% There is no book of quantum for personal injury claims in Ireland. 90% of cases are settled outside court this encourages bogus and exaggerated claims. Solicitors were allowed in the past to offer no-win no-fee services. (This was outlawed by the Law Society in October 2002.) They often charge a percentage of the value of the claim, rather than a flat fee. Page 9

10 6. Can anything be done? The problems associated with Irelands compensation culture and high insurance costs have gained much media attention during 2002 with various lobby groups calling for the need for reform. In April 2002 the Motor Insurance Advisory Board (MIAB) released their final report on the cost of motor insurance in Ireland and made 67 recommendations. These include: That an alternative to adversarial litigation be made available to parties where liability for a motor accident is not disputed by independent assessment of compensation is required. The MIAB endorses the model of the Personal Injuries Assessment Board proposed for employer s liability claims, which might be extended to motor claims at and early opportunity. That a system of case management be adopted by the Courts, with a panel of judges specializing in injury claims, to secure early hearings of non-complex cases which could be disposed of by a short trial. That information on Irish compensation levels for various injuries be collated, such as a book of quantum or guidelines as produced by the Judicial Studies Board in England, and that this data be published to assist earlier settlements between defendants and plaintiffs. That stringent measures be introduced to tackle fraudulent and exaggerated claims with loss of all compensation entitlements and appropriate criminal sanctions. That all claims which include allegations of earnings losses be supported by proof of declared earnings history from the Revenue Commissioners and records of benefits sought under social insurance. That the Court Bill 2001, entering the second stage in the Dail, be amended so as NOT to increase current financial limits of the Courts beyond expressing the existing figures in convenient Euro amounts. That, aside from legislation, the Incorporated Law Society of Ireland as a service to the public should require all advertisements by their members to state that a lawyer is not permitted to seek a percentage of a claimant s compensation and that such action is regarded as misconduct under Section 68 of the Solicitors (Amendment) Act If the above recommendations of the report are implemented there is hope that Ireland s compensation culture situation will improve in the future. Page 10

11 7. Role of Actuaries The actuarial profession has assumed for itself a public interest role and according to its own publications lays down a stringent code of conduct for [its] members to ensure that the interests of the public are protected 16 In a fully efficient and therefore competitive market, it may be reasonable to assume that the actuaries working purely for the benefit of their employers and clients would result in the public interest being protected through competitive forces. If the public is being unfairly treated by insurance organizations, the market will move so as to eliminate any injustice by adjusting terms, conditions, market practices and indeed prices to end these injustices. An Institute of Actuaries working party 17 concluded that there is nothing that requires working actuaries to deviate from their normal duties of working in the best interests of their employers or clients. however we did identify a number of areas where industry practice can be questioned and it might be in the [general insurance] industry s interest to address these questions before they become controversial issues. The main areas of concerns in the UK at that time were Product Mis-selling Availability of insurance Inertia pricing (i.e. different pricing bases for risks who were more likely to shop around) 18 Role of brokers (de facto agents of insurance company s but de jure, agents of the buyer) Claims management (failing to provide agreed level of cover) Public relations In the wake of the collapse of the Independent Insurance Co, perhaps insurance failure could be added to this list. The Irish insurance buying public would identify with most of the items on this list also and the actuarial profession could ask itself if we are adhering to our role of protecting the public interest in these and other areas? Actuaries in Ireland cannot directly affect the perfect-ness of the Irish insurance market place. This is a matter for governments and regulators, both Local/regional (e.g. States in the USA), National (Ireland) and international (The European Union). As the single greatest threat to efficient and perfect markets comes from lack of competition, actuaries would appear to have almost no ability to serve the public interest. Page 11

12 However, general insurance actuaries may be able to fulfill their public service obligations by taking a lead in providing informed and balanced comment in the discussion of issues affecting the insurance market. In 2002, the general insurance industry in Ireland received substantial publicity throughout the course of the MIBI report. The flooding of areas of Dublin & the Midlands with resulting headlines about un-insurability also attracted much un-favorable publicity for the insurance industry. The actuarial profession has not necessarily been to the fore of these debates and may need to be more pro-active in contributing informed comment to the public s information. Page 12

13 8. Conclusion There is no doubt the having comprehensive, affordably and available general insurance products is of great value to society in that it enables us to work, travel, engage in social activities and create wealth whilst protecting us from fortuitous events that would otherwise cripple us financially. To a great extent, many of these features are available through social security systems but due to central exchequer restrictions, force many to buy commercial insurance products. In some cases, this is compulsory (e.g. you want to drive a motorized vehicle). In the preceding sections, we noted that there were many instances where this insurance system has been abused and where its existence has resulted in changes in the public s attitude to compensation. Interestingly, there appears to be no reduction in the propensity to claim that could be expected to attach to the huge increase in wealth in Ireland in the late 1990 s. There appears to be greater public and media interest in the insurance process and how the insurance buyers are the ultimate losers in the process. However it appears that this has taken triple digit rate increases for this issue to attract headlines. Whilst this may have a social benefit that businesses and the general public are more risk aware and possibly engage in better loss prevention measures (i.e. Health & safety or driving more carefully), in many cases this has come too late. Many Small businesses have closed and many continue to choose not to buy insurance cover, even where it is compulsory. Actuaries are part of the oil that greases the wheels of an efficient and competitive insurance market but are certainly not able to directly affect the absolute competitive level that is required for a perfect market. Actuaries, individually and collectively, may need to be more proactive in performing the self imposed public interest role by taking a lead in providing informed and balanced comment in the discussion of issues affecting the insurance market. The Society of Actuaries in Ireland has started along this path by sponsoring and partaking in Seminars and events that address public interest issues (e.g. Motor Insurance Seminar 25 November 2002). Further contribution to debates on public interest issues could take the form of Policy Statements issued by the professional body, as is the case with the Institute & Faculty in the UK. Page 13

14 1 Personal Injury as it affects Irish Business, the State and the Public. Dublin: Irish Business and Employers Confederation (IBEC Report) as reported in the Irish Times, June 1, (CFJ) 2 IBEC report, Jesuit Centre for Faith and Justice The Claims Industry and the Public Interest 4 Second Report of the Special Working Group on Personal Injury Compensation, DETE, March DETE report, March AIR Press Release 23 October 2002 (www.insurancereform.ie) 7 IBEC press release 18 June AIR Press Release, 12 June 2002 (www.insurancereform.ie) 9 Irish Examiner, 2 August SFA press release, 28 February Conor Faughnan, AA presentation to the Oireachtas Joint Committee on Enterprise and Small Business, 26 March Quoted in the IBEC report 1999, page IBEC report, In Foreword to John White s, Civil Liability for Industrial Accident, Data from study by UK solicitors, Davies, Arnold, Cooper, quoted in IBEC report Institute & Faculty of Actuaries press release 26 October 2000 (Young Driver Curfew proposal to reduce insurance premiums) 17 General Insurance and the public interest (Derek Newton et al, GIRO 1998) 18 Inertia pricing-actuarial profession briefing statement: Public relations committee of the Geneal Insurance board January 2001 Page 14

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