It was to great fanfare that the Government announced in the Autumn statement that it was taking action to stop people making fraudulent compensation claims for whiplash.
According to the Conservatives, and the insurance industry, by removing the right for what’s called “general damages” for whiplash, and dramatically reducing people’s right to paid-for legal support, it would reduce the number of bogus claims. This would thereby allow insurance companies to pass on savings to “honest” drivers – of £50 on annual premiums apparently.
There’s just one small problem. If the law does indeed change, and a consultation is underway as I write this, what about all those who are genuinely injured and need to make a claim?
A worrying thought when you consider nearly 400,000 people registered whiplash claims last year, with no one able to firmly prove how many of those claims weren’t genuine. Even if half were fraudulent or exaggerated, that still leaves around 200,000 genuinely injured innocent people who, under the Government’s proposals, would find it much harder to bring a claim for compensation.
And trust me, if you’ve ever suffered whiplash you’ll appreciate why you would want to seek financial recompense. It can very painful and impact on your ability to live your normal life for months and sometimes years.
Right now, under the current rules, if you suffer whiplash or any other injury in a collision, a lawyer can bring a claim for you in the county court and, this is the important bit, you can then recover almost all of your legal fees from the car insurer responsible for the pay-out.
Claims can be bought in the county court when the compensation being sought is over £1000, and, as most current whiplash claims are for between £1,000 and £5000, that covers nearly all of them.
However, under the planned changes, only claims over £5000 for soft tissue injury, which includes whiplash, could be made in the county court. All others, and that’s most of them remember, would have to be made in the small claims court, where, guess what, you can’t recover your legal fees. So even if you were to win your case you could expect to pay up to half your award to your lawyer. Your only alternative would be to try to fight your case on your own – not something you would expect to win when coming up against lawyers representing car insurers.
There’s no question that fraud exists and, as has been suggested, that unscrupulous claims management firms or some personal injury lawyers are trying exploit the current law for their own financial gain. But I would suggest the Government is using a sledgehammer to crack a nut. By targeting fraudsters in this way they are making it harder for hundreds of thousands of innocent people who have been genuinely injured to get the justice they deserve. It has been the right of such victims to bring claims in common law since Lord Denning decided the principle of duty of care in the case of Donoghue v Stevenson in the House of Lords in 1932.
And it’s not like effective steps aren’t already being taken. New rules mean you must produce medical evidence from a Government-approved doctor before any compensation claim can be met. That didn’t used to be the case, and that’s just one of many measures.
So what can you do? Well for a start anyone concerned can contact their local MP and ask them to raise the issue in Parliament. Yvonne Fovargue (MP) did just that last month when she questioned the impact the planned changes would have on people accessing justice.
There’s also a petition on-line to oppose these changes. https://petition.parliament.uk/petitions/113810. The Government is expected to make a final decision in the Autumn.
If you’ve suffered from whiplash and are looking for advice on making a claim, please contact us on 0845 450 6135 or email firstname.lastname@example.org who can advise you about whether you are likely to have a successful claim.