Wednesday, 3 October 2012

Thoughts on whiplash on the eve of the Expert Witness Institute conference

Tomorrow I will be attending the Expert Witness Institute (EWI) Annual Conference at Church House Conference Centre in the heart of Westminster. This year’s Conference is themed around the implementation of Lord Jackson’s reforms in April 2013. The reforms have long been in the offing, and it’s no exaggeration to bill them – as do the EWI event organisers – the ‘Big Bang’. Lord Faulks QC’s ‘view from the House of Lords’ of the reforms should be particularly interesting.

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.