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Whiplash consultation makes no sense

The Government is continuing with its onslaught of reforms to personal injury, in particular with its aim to wipe out whiplash claims, with its latest consultation paper “Reducing the number and costs of whiplash claims”.  The consultation which was issued in December 2012 will end in March 2013.

There are two main focuses of the consultation, the first looks at introducing a system of independent medical panels to provide expert medical opinion. The main reason for wanting to introduce this is because “The Government accepts that whiplash injury is a complex issue.” The second looks at increasing what is known as the small claims limit from £1000 to £5000 in either all road traffic accident (RTA) cases or in all whiplash RTA cases.

In relation to the system of medical panels, all medical professionals who currently provide medical reports do so as an independent expert and their report is addressed to the Court. Many use a standardised template in whiplash cases and the experts sign a statement of truth to confirm the opinion they have given is honest and their own. Therefore, given that it will be the same experts who already give an independent opinion in this new system, it is unlikely that introducing it will actually achieve anything other than slowing down the process of getting a medical report and it costing more to do so.

With regard to the proposed increase to the small claims limit. The significance of being within the smalls claims limit is that the injured person will not be entitled to any legal advice or representation unless paid for by themselves. If they wish to obtain any evidence from a medical expert to confirm their injuries or from an engineer on vehicle damage they will have to make the upfront payments for these, along with paying the Court fees, which they will only recover if they are successful. It is doubtful whether people could afford to do this. In contrast, the driver alleged to be at fault will have a multi-million pound, international insurance company representing them, who will have the funds available to pay for any evidence they want and full legal representation.

The consultation paper reasons that RTA cases and specifically whiplash claims should be within the small claims limit as they “tend to be more straightforward” and people therefore can represent themselves. The proposed increase will mean that to fall outside the small claims limit, the injured person will have suffered from their whiplash injury on average for a minimum of 2 years. To most this would be a considerable period of time and would indicate that it is not as straightforward as suggested. I also remind you of the reason given above for the proposed introduction of medical panels, i.e. because the Government accepts that whiplash is a complex issue. These two statements, made within the same consultation paper are clearly completely contradictory.

The paper goes on to suggest that if the injured Claimants are unable to recover legal costs that the insurance industry will more readily make accusations of fraud in these cases. They advise that they currently don’t because it is cheaper to simply pay. However, if the insurance industry did succeed in proving fraud they wouldn’t have to pay anything and would recover all of their legal costs which would of course be cheaper. If these cases were in the small claims Court they may feel happier making these allegations than they currently do as they are facing someone without legal representation, many of whom would be scared to fight their corner and would walk away. Again, remember that the Government when it suits describes these cases of alleged fraud as “straightforward”.

Very simply, these reforms make no sense. The paper contradicts itself and if implemented would only reduce costs for the billionaire insurance companies and would reduce whiplash claims by creating a wholly unbalanced system in favour of the insurance industry and by removing injured peoples’ access to justice.

Harris Fowler is a specialist firm of personal injury solicitors. Free and friendly legal advice is available on 0800 213 214 or visit harrisfowler.co.uk.

Harris Fowler is a trading name of Harris Fowler Limited and is authorised and regulated by the Solicitors Regulation Authority no. 558271.

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