There has been a move over the past few years to make claiming compensation for whiplash injuries almost impossible. The driving force, to pardon the pun, has come from the insurance industry which claims they have been paying out far too much money to claimants who suffer whiplash as a result of road traffic accidents. They allege, amongst other things, that whiplash does not exist, that claimants exaggerate their injuries, that claimants falsely claim injury and, at the extreme, that the accident either did not happen or was staged so as to fraudulently claim compensation for personal injury.
You do not have to work within the personal injury sector or insurance industry to be aware of the above. The general public consider themselves to be well informed regarding the ‘compensation culture’ we supposedly live in as a result of what they read and hear in our daily news. As a result of such reporting even the already pejorative term ‘compensation culture’ has become synonymous with a degree of dishonesty, even if it’s expressed as mildly as just someone ‘trying it on’. I’m not expecting this one blog to change attitudes but we do need to step back and regain some perspective.
I have been qualified as a personal injury and clinical negligence solicitor for over 10 years. In that time I have become aware of one fraudulent claim involving a road traffic accident and one slip/trip claim where a claimant attempted to attribute injuries caused by a fall at home to a non-existent accident involving a raised paving slab. I stopped acting for both clients at the point I became aware of the dishonesty and neither claimant was successful, and rightly so, in claiming compensation. I have dealt with hundreds of cases so these rogue claims represent a tiny percentage of genuine claims. The general public are under the impression that it is a far higher percentage than this if not the majority.
Before the fixed costs system was introduced (a streamlined system of awarding costs dependent upon the type of accident and value of the claim as campaigned for by the insurance industry), solicitors would spend a large but necessary amount of time investigating the accident circumstances. We want to establish for ourselves that there has been an accident and that this was as a result of the negligence of a third party. This would often involve attending the scene of an accident, taking photographs, tracing and interviewing witnesses, obtaining the police accident report and taking our client’s own evidence. Very often we would obtain medical records to double check that a client had sought medical treatment as claimed and that how the accident had been recorded in the notes accords with the client’s evidence.
After the introduction of fixed costs, we no longer have the resources to make such extensive enquiries before submitting a claim. This increases the potential for dishonest claims to be submitted. An insurer may take an economic view and admit liability and make an offer without obtaining its own evidence or obtaining any medical evidence. This would be in order to minimise time and costs but it again increases the potential for dishonest claims to succeed. It is always the preference of claimant solicitors to obtain medical evidence to support the injuries claimed for. This not only provides the basis for valuing a claim but it also provides reassurance to both sides that genuine injuries have been sustained. If a medical expert considers there is exaggeration or inconsistency this will be highlighted in the report. In the absence of such as report, insurers are taking the risk that they are paying out in claims that otherwise would not have succeeded. This is, of course, the opposite of their stated aim.
In reality, the long game for the insurance industry is to make claims for lower value cases (those under £25,000) untenable by making them uneconomic to run. Up to this point this has been by reducing the amount of fees recoverable by claimant solicitors to barely covering (and often falling short of) the cost of the skeleton amount of work which needs be done. For claimants this means being turned away by solicitors who can no longer afford to run such cases. In October 2014, a new fee system will be introduced for the payment of experts for producing reports in whiplash cases. This will hopefully discourage insurers from making offers without a medical report. On the downside, the availability of good quality experts is likely to decrease when experts also start turning work away when they realise their own costs are not being covered by the allocated amount (£180 for the first and most likely only report).
Therefore, in the future, genuine whiplash claimants are likely to either struggle to engage the services of a solicitor or they will receive a much poorer service with the danger of being undercompensated. This is a high price to pay when the aim is to supposedly prevent dishonesty. If insurers were more honest about their aims, the personal injury sector and the insurance industry could work together to eliminate the small proportion of dishonesty and exaggeration in personal injury claims. Until we reach that point, all too real sledgehammers will continue to be used to crack mythical nuts.