From objective medical evidence to ABS code of conduct – AXA calls for radical whiplash action

Whiplash: call for MRI or x-ray evidence

Whiplash claimants should have to provide objective evidence of injury – such as an MRI scan or x-ray – and not be allowed to claim where symptoms do not manifest themselves after a few days, leading insurer AXA proposed today.

It also called for medical reports to categorise whiplash in accordance with a Canadian scale of 0 to 4 – with 0 being no neck pain and 4 chronic neck pain and fracture or dislocation – with only grade 3 and 4 injuries receiving compensation.

Issuing its ‘Whiplash report’, analysing how whiplash claims are managed in a range of countries, AXA said the proposals – allied with those that the government is already considering – would reduce motor insurance premiums.

In France, where it said the average premium is €410 (versus €681 in the UK) and where whiplash injuries account for only 3% of all bodily injury claims, injury is not recognised unless the medical professional is able to see evidence of injury, such as on an MRI scan or x-ray.

In Sweden (average premium €369), where symptoms appear more than 72 hours after the incident, claims are generally rejected by insurers. AXA said: “Whilst this has been treated more as a rule of thumb, as opposed to a strict law, this minimum threshold was reinforced by the [Swedish] whiplash commission’s medical group in that symptoms must be discovered within three to four days after the accident otherwise it is not classed as a whiplash injury.”

The insurer also urged the government to be vigilant over the referral fee ban and amend it if avoidance behaviour becomes more common. “It seems clear that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is being circumvented by those who are finding creative ways around the ban. Government should consider how best to prevent this significant driver of adverse claims activity.”

AXA reiterated its recent call for a code of conduct for insurer/law firm joint venture alternative business structures (ABSs) “to ensure appropriate behaviour” – particularly around referral of “exaggerated ‘whiplash’ claims to their own law firms”.

There should also be restrictions on the establishment of ABSs offering damages-based agreements for small claims work and a ban on the use of such agreements in low-value motor claims, it said.

Other recommendations included standardised medical reports so as to include both claimant and defendant versions of the accident’s circumstances and supporting evidence such as that relating to the extent of vehicle damage. They should also comment on the “accident mechanics” and include comment on the presence or absence of contra indicators, as well as being a fixed cost set out in the Civil Procedure Rules.

Chris Voller, AXA claims director, said: “Our research looks at examples from across the globe where various countries have been successful in preventing the escalation of whiplash claims, including innovative work in Germany, Canada and Switzerland.

“However, we believe that certain measures adopted in France and Sweden in particular offer very valuable insight into what works in practice and demonstrate several elements which could be adopted by the UK and that we believe would make a significant difference to the cost of premiums.”

However, the information distributed to the media by AXA contains inaccuracies, such as saying that it is the Department of Transport looking at whiplash – rather than the Ministry o f Justice – and that the proposal is to increase the small claims limit to £10,000 for personal injury, when the figure is actually £5,000.



30 March 2021

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