The End of Whiplash Claims?

James Spargo - November 2015

whiplash

George Osborne does not like whiplash. That much is obvious from his autumn statement where he promised tough new rules whereby Claimants would not longer be able to claim for soft-tissue injuries. Instead, they would be offered physiotherapy and other treatment through their own insurers.

Having worked as a Defendant for many years and defended a good many whiplash claims, I can tell you that I don't much like whiplash either. For the unscrupulous out there, it is the perfect condition. It is nearly impossible to diagnose with 100% accuracy and there is no particular test for it. The so-called 'Waddell's signs' can supposedly be used to determine fakers and malingerers but with a bit of research, one can see that Waddell's signs were not intended to determine if someone was faking an injury, but only if there is a non-physical component to their pain. The only real way to combat false whiplash claims is a long and expensive investigation process that does not often yield fruit.

The diagnosis of whiplash relies on the patient's history and account and a doctor assuming that neck pain after an accident must equal whiplash. This, I feel, is one of the reasons why there are so many cases of whiplash in Britain compared to other countries.

Having said that, the recent proposals seem akin to using a sledgehammer to crack a nut. I am fully aware of the amount that fraud costs the insurance industry, both in pay-outs for false claims and in the efforts that go towards detecting the fraud in the first place. It seems, however, a rather radical solution to decide simply that, instead of developing efforts to detect and combat fraud, nobody with a soft-tissue injury will be allowed to claim.

To be fair to George Osborne, he says that the plan is to end compensation for 'minor' whiplash claims, but he fails to define 'minor'. His associated plan to raise the small claims injury limit to £5000 would seem to indicate that he feels that a whiplash injury worth less than £5000 is 'minor,' although maybe not minor enough to be caught by his blanket ban. According to the JC Guidelines, used by lawyers to assist in valuing personal injuries, a whiplash claim worth £5,000 would mean continuing pain for around 2 years. I doubt that a Claimant in that position would consider his condition to be 'minor'.

Now I know that some of you may just dismiss this as the whinging of a personal injury lawyer who is about to have his gravy train derailed but in truth, since the Jackson reforms in 2013, low value whiplash claims are not good business any more, unless you can do them in bulk with a very fast turnaround time.

Tony Newman, head of motor claims at Allianz, said of the existing system that: 'It's still too expensive, encourages bad behaviours and fails to put the genuine claimant at the heart of the process.

I am afraid how I am at a loss to understand how a blanket ban on such claims puts the genuine Claimant at the heart of the process, or indeed anywhere, except up the proverbial creek without even a canoe, let alone a paddle.