Whiplash is not an epidemic and not all claims are fraudulent
September 4, 2013
By Beth King, our head of personal injury
Contrary to what you might read in the press, whiplash really does exist. In fact, it is painful and can really interfere with your daily life.
Can you imagine trying to sleep when you can't get your neck into a position which doesn’t hurt? Or trying to drive when you can't turn your head?
I read today that some insurers have called for all whiplash claimants to undergo MRI scans to prove that they really have been injured. This is beyond silly because MRI scans won't show up a soft tissue injury and they can't prove or disprove if someone is in pain. Quite apart from the fact that insurers won't want to pay the £500 or so that it costs for an MRI scan.
But this is the sort of logic we hear from insurers all the time. They say that whiplash claims account for £90 of every insurance premium. At the same time, they talk about fraudulent road traffic claims as if they are one and the same thing. The truth is that insurers work out premiums to cover what they think they might have to pay out for claims – plus a healthy profit on top. They include in those calculations the cost of all those claims and, of course, whiplash is the most common type of injury because rear end shunts happen all the time on our busy and congested roads.
So the premiums are designed to pay for whiplash claims – yet insurers then complain that they have to pay out for them. I think that's precisely why I pay my insurance, so that if I drive carelessly and hurt someone, they will get the compensation they need to help them get back to work and back on the road.
It's true that there are some people out there making up fraudulent claims. Insurers claim the proportion of claims which are false is huge but they haven't produced any evidence to support this. They also haven't reduced premiums despite lawyers' fees for road traffic claims under £10,000 having been fixed and substantially reduced over the last 10 years.
The Transport Select Committee recently reported its findings following a lengthy enquiry into the cost of motor insurance. They found that the number of whiplash claims has actually fallen since 2010-11 and is now lower than at any time since 2007-08. So it's hard to understand the government's view that Britain is the "whiplash capital of Europe", or the insurers' continuous complaints about the cost of claims causing premiums to rise.
Even harder to swallow are the insurers' claims that fraud is a major problem. I've been practising in personal injury for 27 years (including a few years acting for insurers) and I have come across a tiny number of claims I thought might be made up or exaggerated. What really surprises me is insurers moaning about fraudulent whiplash claims but then doing absolutely nothing to ensure the claims they pay out for are genuine. It's cheaper for insurers to make offers to settle without seeing any medical evidence so they make offers at a very early stage. Sometimes the offers are too good to refuse but I have no doubt that if the offer is accepted, the insurers then record it in the fraud database as a potentially fraudulent claim. In fact, it's just a claim they settled cheaply by avoiding legal fees and medical evidence.
At present, where the injuries alone attract damages of £1000 or less, the claimant can't recover the cost of a lawyer from the insurers so most people can't afford to bring a claim at all. Insurers are pressing for an increase to £5000 which will include the vast majority of injury claims (not just road accidents but all types of claims) and huge numbers of claimants will either have to run the claim alone or not bother. That will save the insurers millions of pounds but it will leave many innocent victims without legal representation and effectively without redress.
It remains to be seen whether the Ministry of Justice takes on board the findings of the Select Committee when it considers whether to increase the small claims limit for personal injury claims from £1000. The government's decision on the small claims limit is imminent – so if you've been involved in an accident and you're thinking about making a claim, don't delay. Get legal advice now to ensure that you can make your claim before any change in the limit.
The information contained in this article is intended for general guidance only. It provides useful information but it is not a substitute for obtaining legal advice as the articles do not take into account specific circumstances. So do please Contact US for legal advice on the issues raised.