By diagnosing ‘whiplash’ instead of
‘hypochondria’ or ‘acute exaggeration’, the
doctor maintains a good relationship with
their client and no harm is done, right?
Absolutely.
Except, where do you think is the first
place that a Court will look for evidence
of a whiplash injury? An entry in medical
records of whiplash at around the time of
a recorded accident, combined with the
claimant’s evidence in Court. The strength
of this evidence is such that it is virtually
impossible for a defendant to rebut.
This reliance on the honesty of the
claimant, unfortunately, allows fraudulent
claims by people who are looking to
make a quick buck and, in recent years,
it has been increasingly reported that
people aren’t just exaggerating genuine
claims but the fraud has extended
to claims raised for non-existent
passengers, and even ‘cash-for-crash’
incidents whereby a crash is deliberately
caused in order to generate a claim.
In addition to these fraudulent claims,
figures cited by the Transport Committee
in their July report show that there has
been an increase in the number of
personal injury claims issued year on
year with 819,137 claims in 2012/13
compared to 625,072 in 2008/09.
In more practical terms – this means that
everyone’s car insurance has to go up to
accommodate these increases and this
is something that no road user is happy
about!
Does the UK suffer from
‘compensation culture’?
Clearly, the above figures show us that
more people are making personal injury
claims each year. Newspapers are quick
to rouse a baying mob of angry, pitchfork
wielding, lawyer hating, car drivers by
blaming the increase in claims on the
‘compensation culture’ in the UK and
the increasing number of fraudulent
whiplash claims.
“
So, how do we
reduce the cost
to society of all
these claims?
That’s the million
dollar question.
Most people may then be surprised to
find out that the information collated by
the Government shows that claims for
whiplash have actually fallen since their
peak in 2010/11 and that in 2012/13 the
number of such claims is now lower than
at any time since 2007/08.
Ah, well then, it is all those pesky
lawyers’ faults that we suffer from
compensation culture! Not just whiplash
claims! They keep advertising their ‘no
win, no fee’ agreements all over the
television and if they stopped doing that
then people wouldn’t make all these
silly claims and our insurance premiums
would go down!
I see the logic of this argument,
particularly from the point of view of the
defendant who has become embroiled
in expensive litigation with a claimant
who is clearly not telling the truth, the
whole truth and nothing but the truth.
The defendant might well know that the
claimant is not being entirely honest –
but the pressure to buy off the risk by
settling the claim as early as possible is
immense. So much so, that it is leading
some insurers to settle a claim without
even bothering to wait for the medical
evidence to be disclosed!
However, perhaps what is really
happening is that more people are
aware of their legal rights and are
looking to enforce them where previously
they may have suffered in silence. There
is no doubt that people who genuinely
suffer injury as a result of someone else
should be properly compensated for
any losses that they incur because of it.
Some people are grossly hurt through
absolutely no fault of their own and I
am sure we all agree that we pay our
insurance premiums to make sure those
people are not left injured and out of
pocket. This includes people who have
suffered terribly because of whiplash.
‘Whiplash injuries can arise from motor
accidents and can have debilitating
consequences for those who suffer
them. It is appropriate that people
injured in motor accidents through no
fault of their own should be able to claim
compensation from the party which
caused the injury.’
So, how do we reduce the cost to society
of all these claims? That’s the million
dollar question.
The Transport Committee reported on
this very issue earlier this year and they
recommended a number of proposals for
the Government to consider including:-
An accreditation scheme for medical
practitioners who provide medical
reports in relation to whiplash claims.
Moving whiplash claims of between
£1000 and £5000 to the small claims
court so that they can be dealt with
faster and claimant’s can represent
themselves so legal costs are reduced.
I find it astonishing that a personal injury
claim would be settled if medical records
haven’t at least been seen, but then I
suppose the thinking behind it is – if you
are fighting a losing battle then why not
just pay up early and avoid any additional
legal costs a solicitor may charge for
looking through medical records only
to confirm what you already knew.
Unfortunately, this sets a precedent. I
also wonder what value an accreditation
scheme can possibly add in light of
the difficulty in diagnosing whiplash as
outlined earlier in this article.
In relation to the last suggestion, it would
seem sensible for low value whiplash
claims to be dealt with in the small
claims court and therefore subject to
fixed costs. However, this may present
access to justice issues for claimants
who do not have the confidence to
represent themselves and, at present,
expert evidence is very rarely used
in small claims cases. I think that this
measure is unlikely to stop insurance
companies from simply paying up as
soon as they get a whiff of a whiplash
allegation.
In my view, it is important that we keep
fighting back against the fraudulent
claims and don’t make it easy for them.
The insurance companies’ tendency
to roll over and simply pay out at t he
mere whisper of the word ‘whiplash’
is not helping anyone. Precedents
are being set everyday that suggest a
whiplash claim is a great way to earn a
few thousand pounds. I can understand
an insurer’s reluctance to engage in
litigation over a damages payment of
£1500 which will cost over £50,000
to defend but it is important that we
stand up to the people who are taking
advantage of the system - not only
for the sake of thwarting fraudulent
claimants’ efforts to obtain an unjust
enrichment, but also to stop those
claimants from making a mockery of
people who have endured a real injury
through no fault of their own and deserve
to be compensated for their loss.
By Jo Ironside
Requiring claimants to provide proof
that they have either been seen by a
doctor or attended A&E shortly after the
accident. There should be a presumption
against accepting claims where
adequate proof of injury is not provided.
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