The Association of British Insurers (ABI) has today set out its terms for agreeing to end the controversial practice pre-medical offers to whiplash claimants.
Senior policy adviser Rob Cummings said that if the changes to medical evidence introduce “a greater degree of rigour” and the fee for the report is incorporated into the Civil Procedure Rules, “the industry is willing to consider stopping pre-med offers”.
Speaking to Manchester Law Society’s personal injury conference, Mr Cummings noted that the vast majority of pre-med offers are for low-value whiplash claims, and “some insurers rightly question the benefits of asking for a medical report on an injury which has no objective test, which has little chance of coming back with a negative diagnosis and which will add over 10% to the cost of the claim”.
This was even more so when a number of these reports are for claims that could be months, if not years, after the accident “and where the doctor has nothing more to go on than the subjective word of the claimant”.
He said: “If the reforms to the medico-legal reporting framework are not introduced properly or are watered down to protected vested interests, simply banning pre-med offers will achieve little. In fact, it would only serve to add additional costs for personal injury claims which would ultimately lead to increased premiums.”
The government said last month that it was “attracted to introducing a rule to ensure that a medical examination and report is completed before a claim can proceed”.
On referral fees, the banning of which the ABI supported, Mr Cummings acknowledged that “it was a major self-inflicted blow for insurers to participate in a personal injury claims market involving a merry-go-round of referral fees and other unnecessary costs”.
He continued: “Given the financial rewards that were to be had from referral fees, it comes as little surprise that people across the market continue to look at new and innovative schemes; or whether there are gaps in the law or between regulators, to get around the ban.
“People should be asking themselves, not whether these practices are within the letter of the law, but whether they are in the spirit of the LASPO reforms. The government banned referral fees not to stop honest claimant lawyers from marketing their services but to stop the increasing number of frivolous and exaggerated personal injury claims.”
Mr Cummings said that while – at least for now – claims frequency is reducing, the cost of claims “has not seen a corresponding reduction”.
He explained: “Fixed fees have reduced but at the same time as awards for general damages have increased. The Judicial College Guidelines and the Simmons v Castle decision have together driven up general damages awards by around 20%. Insurers are also reporting significant increases in the number of rehab referrals and psychiatric reports since the reduction in fixed fees was introduced. Overall then, there has been a substantial increase in claims costs.”
Continuing to push the case for an increase in the small claims limit for personal injury to £5,000, he said there needed to be three safeguards to ensure access to justice for genuinely injured claimants is not undermined:
- Improved education and awareness so that claimants know how to file a claim for compensation in the new system and what their rights are;
- The mandatory use by claimant and defendant representatives of independently regulated software-based damages calibration tools to assess general damages awards in all cases, litigated or not; and
- The claims portal employing a small number of staff to process paper-based claims from those who are not able to file a claims notification form online.