But
if April 2013 is set to yield seismic changes to the civil litigation
landscape, I hope that the same isn’t true when it comes to our treatment and
sympathy for whiplash injuries. As I have noted before, an unruly bandwagon is
being piloted by an alliance of insurers, government and certain newspapers to
convince us that whiplash is an invented condition. If the bandwagon isn’t stopped,
it will career into whiplash victims and ruin their ability to obtain redress.
I
hope to raise this issue at the conference, especially when I join EWI director
Nick Addyman, EWI fellow Dr Keith Rix and Brian Gardner FRCS in a ‘medical
breakout’ session. We’ll be debating topics dear to our hearts; the prejudice
against whiplash is certainly one of mine.
However,
before reiterating some of my beliefs about whiplash, perhaps I should first
make clear that there is common ground here. I and other claimant PI lawyers
agree with insurers that there is an opportunity for fraud in the current
system. So, too, do we agree that fraud contributes to the rising cost of motor
insurance. We also welcome the government’s wider interest in the motor
industry and the myriad of factors that could contribute to lowering the cost
of motor insurance, including education, training and monitoring for new and
young drivers.
But
the myth that whiplash is not a genuine injury has got to be scotched. Whiplash
is real and there is a wealth of evidence that demonstrates its potentially
debilitating impact and long-term consequences. The government’s proposal
to increase the small claims limit in personal injury cases from £1,000 to
£5,000 cannot but have a devastating effect on whiplash victims. It should be
remembered that this idea was consulted on at length and rejected by the
Ministry of Justice on the grounds that it would stop genuine accident victims
from receiving justice.
Moreover,
reducing legal fees to an artificially low level – as is also mooted – may have
the unintended consequence of lowering the quality and standard of
representation in whiplash cases. It could also lead to legitimate claimants
having to fight for compensation without legal representation, therefore
eroding access to justice.
Finally,
imposing an arbitrary accident speed (e.g. 15 miles per hour) below which a
claim cannot be made has little medical foundation, as serious injuries can
occur even in low speed collisions. In addition, satellite litigation and
unnecessary costs may be generated by arguments over evidence of exact speeds.
One can well imagine endless and costly debate over whether a claimant was
driving at 15mph or at 14mph. Technology such as telematics could have a role
in reducing fraud and bringing down the cost of motor insurance in the future,
but it is not a panacea. These schemes are currently unproven and cannot be
relied upon as an absolute measure when all circumstances and individuals are
different.
So much for the
laments. Do we, I hear you ask, have any solutions? We do. Take a look at
the 10-point plan for
eliminating fraud produced by the Association of Personal Injury Lawyers.
Some of APIL’s ideas overlap with mine, which appear below:
- There needs to be better co-operation between all affected parties to clean up the sector. We need a holistic approach involving government, insurers, the car industry, accident victims, medical professionals and legal professionals.
- There should be compulsory medical examinations. No whiplash claim should be settled without a medical examination. In other words: no medical, no damages. This would help to reduce fraudulent or exaggerated claims.
- There must be robust regulation of claims management organisations. This would reduce the negative impact they have on the industry.
- Better enforcement of data protection legislation is desperately needed. This would prevent the misuse of customer data, which concerns consumers and brings the industry into disrepute. It would also curtail the use of unsolicited marketing to encourage people to take up fraudulent or exaggerated claims.
- Better regulation of insurance companies is needed to stop sharp practices such as third party capture (pressuring claimants to settle before the case has been fully considered).
- The sector needs to work with medical organisations to develop better knowledge and understanding of what soft tissue injuries can be caused by motor accidents and to ensure that medical examinations and reports are substantive and objective.
- There must be continued improvement in vehicle safety to reduce and prevent head and neck injuries.
I’d be
delighted to discuss any of this at tomorrow’s conference, or via comments to
this blog.
Great piece John, and I am sure you will emphasise the point that whilst fraud contributes to rising insurance premiums it is not the bete noir that the insurance industry has made it out to be. I think particularly of the recent referral by the OFT to the Competition Commission. Cynical reporting of the problem has managed to disseminate the view now widely held by the man in the street that all whiplash claims are suspect and the sole cause of rising costs.
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