Re: Winter 2013/14 - Page 83

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. 81 “