Posted by Helen Elkin of Litigation Futures sponsor Bott & Co
Whiplash – such a simple term and yet one which strikes fear into the hearts of the insurance giants and generates cries of ‘fraud’ from the general public.
So much has been published about fraudulent whiplash claims that the government, swayed by the large insurance companies, seems to have convinced the average person on the street that all whiplash claims are fake; or worse still, that the condition does not even exist at all.
The topic is obviously emotive, what with the ever increasing insurance premiums; however, amongst all this debate the innocent victims of road traffic accidents appear to have been completely forgotten.
As a claimant personal injury solicitor, with experience of also working in defendant RTA insurance fraud and having suffered a whiplash injury myself, I have experienced whiplash claims from every angle. Does whiplash exist? Most certainly. Can physical signs of injury be detected? Not visibly. Do some people invent or exaggerate symptoms? Yes.
It is easy to see how an individual could bring a false claim but should the small minority that make fraudulent claims ruin the chances of those actually suffering from seeking compensation. Furthermore, are the changes proposed by the government really going to tackle the issue? Insurers seem to deal with the issue in one of two ways: settle cheaply or raise spurious fraud ‘concerns’ and increase the costs of investigating such matters.
My experience working for insurers suggests that the issue has been made so high-profile that handlers are seeing fraud at every corner, with many claims being referred to claims validation teams simply because there happened to be three or four people in the vehicle. This obviously has a huge impact on the investigation costs. The flip side is that some insurers try to settle the claims cheaply at a very early stage.
The Ministry of Justice has recently decided against a total ban on such pre-medical offers – but by leaving the door open to such offers, are they not encouraging fraudulent claims as settlement on such a basis means the claimant is not asked to prove their injury?
The government has now cut medical report fees to £180. Given the difficulty in diagnosing whiplash injuries, curtailing the fee is not the answer. Many medical examinations are already limited to 10-15 minute slots, which leave no time for claimants to fully explain the extent of their injuries. It certainly does not give the expert enough time to perform a thorough examination. Restricting costs yet further will pressure experts into quickening the process still more to ensure that they remain cost effective.
From personal experience, whiplash injuries can have a debilitating effect; enduring pain, aching, tightness and countless physiotherapy sessions, sometimes for many years after the original injury. So, how then do we properly assess these injuries? Perhaps the answer is to move away from the traditional medical report in favour of an initial assessment by a physiotherapist.
These are the professionals who treat whiplash injuries day-in, day-out. They know the signs and can feel the knots, spasms and tightness in the muscles which are not visible. A physical exam is also likely to dissuade an individual from pursuing a fraudulent claim and any invented or exaggerated symptoms are more likely to be detected.
Would this improve things? Who knows? This is certainly a debate that is going to keep recurring until the right balance is found between preventing fraudulent claims and allowing access to justice for those injured through no fault of their own.