For some time, there has been a theme of depicting whiplash claimants as fraudsters. Jack Straw describes whiplash as a ‘profitable invention of the human imagination’. The Association of British Insurers create a perception that whiplash doesn’t exist. Nick Starling told the House of Commons Transport Committee, for example, that 'with some of the personal injuries, whiplash for example - there are very high rates of whiplash - it is a soft tissue injury. There is no physiological evidence, as I understand it, that you've got that injury.'
At the same time, the Thatcham vehicle research organisation invests heavily on behalf of insurers (and quite rightly) in the prevention of whiplash. Dare I say it, they are being a little two-faced about this. A whole gamut of legal reform faces personal injury lawyers, and no doubt the government is hoping this will reduce whiplash claims. The Jackson reforms will undoubtedly leave the most seriously injured people worse off and will prevent many victims from litigating.
But their impact on whiplash claims, the one area where the government is keen to have an impact, is questionable. Success fees in road traffic accidents are already capped at a low level, and would be largely offset by the proposed 10% increase in damages. The Transport Committee talked about putting an ‘extra bar’ in place for whiplash victims before they receive compensation, as a way of controlling the number of claims. Well, as a first step it would be worth persuading insurers to at least stop lowering the current bar. The flurry of offers made by insurers before medical reports have been obtained have only driven the burden of proof lower, as claimants are not being asked to stand in front of a doctor, or being questioned about their statements. If insurers are going to throw easy money at people, or offer to buy people off through third party capture, they should not be surprised if it generates more demand.
Insurers allege fraud when they speak publicly, but shy away from it in individual cases. If they really believe fraud is widespread, they should stand by their convictions and defend suspected fraudulent cases rigorously. This was another point well made by the Transport Committee. Let the courts decide. The argument that fraud in whiplash is unprovable simply isn’t true. A good doctor can spot genuine pain and genuine restriction of movement and, like most of us, can spot a liar.
Lawyers have no interest in securing settlements for fraudulent claimants as it brings the profession, and the individual firm, into disrepute. It also elongates the process and can lead to significant costs consequences for the firm. In my experience as a lawyer the vast majority of claimants are not liars. Inevitably, there will be a few who are and insurers must stop making it easy for these people to abuse the system. Rather than putting yet more hurdles in place for the injured person, let’s apply the current tests properly in every case. Let’s stop listening to the spin and get back to common sense.
David Bott, is president of the Association of Personal Injury Lawyers (APIL)