Written evidence on behalf or Robin Torr, a Personal Injury Solicitor
The definition of whiplash and the prevalence of RTA-related whiplash claims
A whiplash injury occurs due to forceful, rapid back-and-forth movement of the neck (like the cracking of a whip) resulting in the tendons of the neck being torn. Most whiplash injures are the result of a rear-end shunt type motor vehicle accidents. Whilst I do not know the exact number of rear-end shunt type accidents, I would submit that they are going to be the most common type of accident caused by driver inattention when driving in slower moving traffic or when approaching junctions or traffic lights. People who are involved in slipping accidents tend to fall on to an outstretched arm or backwards, resulting in injuries to arms/wrists or their coccyx/back. People who are involved in tripping accidents also tend to fall on to an outstretched arm. Due to the mechanics of a rear end shunt Road Traffic Accident it follows that “whiplash” injuries will be more prevalent when compared to the injuries suffered in other accident types.
It should not be necessary to define the injury for the purpose of bringing a claim as there should be no delineation as between a whiplash injury and a soft tissue strain type injury or any other type of injury for the simple reason that there should not be a two-tier system of compensation. An injury is an injury irrespective of whether it is caused as a result of a Road Traffic Accident, slip in a supermarket, trip on the street or at work.
Whether or not fraudulent whiplash claims represent a significant problem and, if so, whether the proposed reforms would tackle this effectively
Fraud is a significant problem in all areas of life, not just car accident claims. Raising the small claims limit will do nothing to discourage fraud and may even increase it as there will be no filtration system (in the guise of solicitors vetting the claims) if the small claims limit is increased and Claimants are encouraged to act for themselves. Allowing Claims Management Companies (“CMC”) to undertake these claims will not prevent fraud and may cause it to increase (as it is believed that CMCs propagate fraudulent claims via their marketing methods (such as cold calling)).
The majority of Claimants should not be punished because of the actions of a small minority of people.
The provisions in Part 5 of the Bill introducing a tariff to regulate damages for RTA-related whiplash claims, with an uplift in exceptional circumstances; and banning the settlement of claims without medical evidence.
If a tariff has to be introduced then it must be set at a realistic level when considering the nature of the injury and the effect it has on the person suffering it. The proposed tariff for physical injuries is derisory. The proposed tariff for psychological injuries is insulting and belittles the impact these injuries have on a person’s day to day life. The proposed tariff suggests that a person should be compensated more for the inconvenience of having a flight delayed for four hours than they should be for the pain, suffering and inconvenience that they suffer as a result of the tendons in their neck being torn.
It is correct to ban settlement of claims without medical evidence as it is my view that the insurers’ practice of making offers of settlement without having had sight of independent, objective, evidence that a Claimant has suffered injury did nothing to discourage fraud and in fact encouraged it
The impact of raising the small claims limit to £5,000 for RTA-related whiplash claims, and of raising the small claims limit to £2,000 for personal injury claims more generally, taking account of the planned move towards online court procedures
The proposed increases in the small claims limit to £5,000.00 for RTA related whiplash injuries and to £2,000.00 for other claim types will create an apartheid system and could lead to an increase of fraudulent claims and/or “transferred injury” claims (wherein a Claimant legitimately injures themselves in an RTA but claims that the injury occurred in another manner so as to be able to recover their legal costs (or a proportion thereof) and more sensible amounts of compensation for the injury. If the increase is allowed and people are forced to represent themselves there will be a down turn in the number of claims. This will lead to more significant injuries going unnoticed and could have a negative effect on society as a whole. Contrary to what insurers assert I do not see premiums decreasing if the reforms are implemented as I have not seen premiums reduce as a result of the previous swathes of reform to the market (such as abolishing recoverable success fees and reducing the size of the costs that Claimants can recover).
The planned move to online court procedures is misplaced. Even if they have the hardware not everyone will have the ability or desire to do so. Claimants instruct solicitors to act for them because they do not want the hassle and stress of pursuing a claim for injury and loss at a time that they feel vulnerable.
The role of claims management companies in respect of these matters.
To say that all CMCs are the cause of the current state of the RTA injury market and the driver of these proposed reforms is naïve and crass. Whilst I accept that there are one or two rouge companies in operation it does not mean that all CMCs should be tarred with the same brush (just as the fact that there is a small pocket of fraudulent Claimants should not mean that the majority lose their right to be entitled to fair and proper amounts of compensation for the injuries that they suffer).
CMCs should not be allowed to undertake small claims matters on behalf of Claimants. Whilst they are regulated, their regulation is “light touch” compared to that of Solicitors. Not only will that, but the people operating the businesses will not have to be legally qualified as solicitors have to be to operate their firms. This will mean that Claimants are being represented by people who do not understand the intricacies and nuances of English law which could result in them getting negligent or poor advice and could result in them not being correctly compensated for their injuries.