13 November 2012Print This Post

Survey highlights need for claimant lawyers to take initiative in whiplash debate

Whiplash: impossible to prove, says ABI

Claimant personal injury lawyers need to focus less on the compensation would-be clients could win and also to convince the public that whiplash is a real injury, a survey of consumers has indicated.

The poll of 1,500 people who had bought motor insurance indicated that “they don’t get it, they’re not behind you”, Ian Hughes, the chief executive of Consumer Intelligence, which ran the survey, told delegates at the Motor Accident Solicitors Society (MASS) annual conference in Manchester on Friday.

Asked how personal injury lawyers make consumers feel, the words ‘annoyed’, ‘angry’ and ‘disgusted’ were top of the list, along with ‘happy’. ‘Money’ and ‘scam’ were the most common words used to describe ‘no win, no fee’.

Mr Hughes laid out “four simple steps to save the industry”. With most consumers telling the survey that they view the injury claims ‘industry’ as a way to bring fraudulent claims – and only 8% saying that it enables access to justice for all – he said claimant lawyers need to emphasise that what they do is about justice for all and restitution, rather than the money.

Second, with few consumers identifying whiplash as a serious injury (with men particularly sceptical), Mr Hughes urged claimant lawyers to “get serious and clearly define whiplash as an injury”. Related to that was the need to clamp down on dodgy claims by insisting on medical evidence from credible third parties before a claim is paid out.

“You need to stand up as an industry and say that you won’t deal with claims where there is no medical… if you want to get consumers on your side.” Both MASS and the Association of Personal Injury Lawyers (APIL) are currently campaigning on a ‘no medical, no damages’ line.

Finally he told delegates that they need to focus on “fixing the system”, with lawyers second only to dishonest drivers – and ahead of claims companies – in the list of those consumers blame for the current problems. Those surveyed said the government and insurers are best placed to reform the system, either of which Mr Hughes said would not be good. “If you let the government get involved, it will be a disaster,” he predicted. “They don’t do it to get things right; they do it to get re-elected.”

Speaking after him, Martin Milliner, director of claimant and technical services at LV Insurance, attacked what he described as the “propaganda” of last week’s whiplash report by APIL, which highlighted a fall in whiplash claims over the last year. He said there have been 30% fewer accidents in the last five years but this was the first year when that resulted in fewer whiplash claims.

Mr Milliner also argued that the statistics do not support APIL’s claim that large numbers of injured people do not bring claims – he said that with 50% of car-related injuries in Liverpool resulting in a claim, the city was worse than America’s claims hotspot of Louisiana, where the rate is 38%.

James Dalton, head of motor and liability at the Association of British Insurers (ABI), argued that whiplash is as impossible to prove as a headache, saying that raising the small claims limit to £5,000 would “put a break on spurious claims”. He criticised the Ministry of Justice for not yet publishing its consultation on the limit.

Mr Dalton questioned whether minor whiplash injuries should attract general damages where there is “no objective medical evidence”, floated the idea of a cap on general damages and said that a claim with any fraudulent element should be struck out.

He added: “Do claimants need legal representation at all in small claims where liability is not in question?” He said the rules on treating customers fairly and Lord Justice Jackson’s call for software that can generate the general damages figure mean insurers could deal with such cases. The audience expressed collective scepticism at this suggestion.

Mr Milliner said the Jackson reforms will not solve the whiplash problem, but raising the small claims limit might, as would Department of Work and Pensions-style independent assessments of injuries.

Simon Margolis, chief executive of Premex and chairman of the Association of Medical Reporting Organisations, pointed to the “poor track record” of such assessments, and questioned the government’s suggestion of introducing new independent panels to diagnose whiplash claims – which he said may reduce the speed and quality of what MROs currently offer.

Arguing that MROs have had a positive impact, he put forward a “third way” of evolutionary change: independent ownership of MROs; fixed fees for most common types of report; replacing the rebuttable assumption that there will not be a review of the claimant’s medical records with the right for either side or the expert to request it; more information provided to the expert at the time of examination; training, auditing and accreditation of experts; and an ombudsman or behaviour committee.

By Neil Rose

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