Q. What do you get when a motorist co-conspires with the driver of a bus and 26 dishonest passengers?
A. A staged road accident, a barrage of whiplash claims against the relevant insurers and a hurricane of headlines screaming ‘whiplash fraud’ … again.
There is little wonder why the media whips stories like this into a storm – see Gang of fraudsters jailed for half a million pound crash-for-cash scam in a BUS – as the fraudsters involved are so brazen in their attempts to dupe the law that it makes for shock-horror reading. And that sells.
In the wake of such reports, legal professionals are left to pick up the wreckage – reminding everybody that these incidents are not representative of all whiplash claims. In fact, they are thought to account for just 7%.
Of course, part of that tired battle also involves a huge number of innocent whiplash claimants, genuinely suffering with their injuries, being caught in the crossfire.
Since 2012, there have been a number of notable events in the legal arena surrounding whiplash and how such claims are perceived and handled today.
Below are three significant events.
One: Medical expert panels
The Ministry of Justice confirmed earlier this year that independent medical panels would be introduced by July 2014, to assess the injuries of a whiplash claimant, prior to court proceedings.
It is expected that these panels will be made up of a variety of experts, including representatives of industry authorities like the British Medical Association and Law Society.
Once in place, only the analysis of a claimant’s injury by the independent medical panel would qualify as evidence for the case. The intention is that neither claimant nor defendant can influence the evidence provided with any sort of bias.
Many consider the move to be a major step forward in reducing whiplash fraud and giving all claimants fairer assessments for their injuries.
However, I do have a couple of reservations …
Firstly this elected and limited medical panel rips away the claimant’s ability to choose who they have examine them. We are talking medical examinations here, and in many cases we’re also talking about particularly vulnerable people, recovering from their injuries.
Then there’s the issue of standardising the process.
If it becomes a matter of just ticking boxes then genuine sufferers may not ‘pass the test’ so to speak.
Every claimant is different and time must be taken to fully examine the client and discuss their injuries. Limiting this to a series of questions that fit the appropriate boxes takes away the individual issues of that particular claimant and important information could be missed and could lead to insufficient compensation for the claimant.
I would prefer to see a qualified and endorsed register of experts, from which the claimant can select their own examiners.
Also, it is vital that the right people are elected to be on the panel (or register).
If either legal or insurance professionals are chosen, then they must have the reputation and backing to be wholly neutral, and un-slanted towards the interests of their field.
Two: Insurance company profits
It has been reported that major insurers like Aviva and Axa have been ‘obscure’ about how much profit they’re actually generating from motor insurance.
It’s largely a lack of transparency on the insurer’s part that is causing concern and drawing criticism from all angles.
Aviva has outright denied the accusations.
Craig Budsworth, chairman of MASS, raised the following arguments:
- The understating of profits has been suspected for a long time
- Greater transparency would be ‘welcome’ and ‘long overdue’
- The claim from insurers that money saved since the enforcement of LASPO has been redirected to benefit consumers, is ‘manifestly untrue’
- The insurance industry’s collective profits allegedly exceeding £1.6 billion in 2012 is a clear enough indicator that the sector ought to do more to reduce premiums directly
Now, given that a large part of the Legal Aid Sentencing and Punishment of Offenders Act (LASPO) was aimed at quashing fraud, in order to reduce expense and in-turn reduce the inflation of insurance quotes, it’s worrying (but not surprising) to see that insurers are enjoying better profits since … instead of applying the benefit to consumers. How many of you have seen your insurance premiums reduce since LASPO? I, for one, have not.
It only adds to the downpour of arguments suggesting the insurance industry has long focused on revenue and political alignment, rather than genuinely serving clients.
It is clear that both the legal and insurance industry have the same objective (i.e. working together to establish fair medical panels and stamping out fraud). By becoming more aligned we’ll start to see real benefits for those with legitimate claims and ensuring genuine claimants receive the compensation they are entitled to.
Three: Small claims limit increased
It was originally suggested that the personal injury small claims limit would be extended to £5,000.
This suggestion was met with serious criticism as it could present a situation where a seriously injured person would be forced to fight their case alone. Without legal representation claimants’ access to justice would be severely limited and could result in many genuinely injured claimants choosing not to bring a claim through fear of a complex legal process.
My firm were amongst many to speak out against the proposals and in October 2013 the idea to extend the PI Small Claims limit was thankfully rejected.
It’s fortunate that the government agreed with the legal professionals on this matter but this is yet another example of how things aren’t ‘easy’ for whiplash claimants.
All three of these points tie back into that media-powered perception of Britain’s ‘compensation culture’.
If whiplash could somehow be free of its stigma, then the public, insurers and the government might just view it for what it actually is – a painful injury that ought to be treated like any other when it comes to securing justice.
I believe certain steps forward – if executed correctly – may help reduce fraud to an extent. If insurers, solicitors and the government can work together, then hopefully whiplash victims will have fairer access to justice in the future.
In the meantime, it is the responsibility of the press to resist the temptation to sensationalise individual cases of fraud, as it only creates an unnecessary cyclone of stigma – which hinders any progress made by the trinity of authorities mentioned, in their attempt to quell scrupulous claims and serve those who genuinely deserve redress.
Amy Smitheringale is a chartered legal executive and solicitor with more than 15 years experience in civil litigation. Amy is the manager of a team of litigators at Spencers Solicitors who deal with a wide variety of personal injury and road accident claims