Thursday, 13 December 2012

Whiplash backlash

Liability insurers seem to have got their way (surprise) as the Government launches its 'consultation' on proposed measures to tackle the evil as it is said to be of claims for compensation for whiplash injuries.

Let's be clear about one thing from the outset. Whiplash is not a myth. It's real - and it can have devastating effects. Hyperflexion and hyperextension of the cervical spine can in some cases result in brain and/or spinal cord injury, even death.

Often the outward signs are minimal, as they were in the case of a wholesale store manager I acted for a few years ago. But time went on and he couldn’t work, couldn’t play sport, couldn’t maintain his family life. Happy man lost his job, his marriage and his home.

He recovered significant compensation because, in addition to the orthopaedic reports, we commissioned expert psychiatric evidence that confirmed the causal connection. It was entirely genuine.

So, what's the problem? If these claims stand or fall on the basis of expert medical evidence - as, ultimately, all injury claims must and will - why worry?

Insurers have two main beefs. The headline, very reasonable, concern is that it's fertile ground for fraud. Faking or exaggerating a whiplash claim is easy, if you're willing and able to lie about your symptoms, it is said. There can be little doubt it happens.

The key problem seems to be the inability of many medical practitioners to validate claims.That stems from two problems. First, they lack the expertise and the technology - or both - to make an objective appraisal, independent of what they're told by the patient. 

Secondly, they are either unable or unwilling to test the truth of the subjective account they hear.

Well, you would be forgiven for thinking that one of a judge's key functions is to consider the integrity of the evidence, expert or otherwise, supporting a claim. The court is the gatekeeper. Here lies the second gripe.

Insurers say it’s too expensive to defend these claims, even if they win ultimately because many fraudsters aren’t worth powder and shot to enable costs to be recovered, or the sums are not worth chasing. They say they pay up because it’s cheaper, but they still complain about it and blame rising premia on claimants, their solicitors and costs.

Now a two-part “solution” is proposed.

First, we effectively scrap whiplash claims. Baby out with the bathwater. Genuine claims swept away along with, courtesy of, the fraudsters.

A bit like the current approach to disability allowance claims, some might say.

Second, take away the ability of claimants to properly pursue their rights – not just whiplash sufferers but all claimants with injuries worth plebeian amounts of less than Five grand.

A bit like the current approach to legal aid to challenge disability allowance decisions, and much more, some might say.

Overkill? Of course it is. In the typically disingenuous manner of the insurance industry the real attack is on the small claims limit to try and wipe the majority of claims that cost them money and that wouldn’t happen if claimants had no legal representation. Without lawyers claimants will almost always be at the mercy of wily claims handlers and all their tricks.

Until hauled up in front of the Court of Appeal these powerful institutions will do as they like, even if the law says otherwise. See the verdict of Lord Justice Longmore in Brown-Quinn yesterday.

The minority of fraudulent whiplash claims needs a proportionate and discerning solution, targeted at the problem – not to be exploited cynically to deprive deserving accident victims of justice to which they are entitled.

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