Diane Parker, personal injury specialist discusses the upcoming ‘whiplash reforms’ and the impact they will have on those injured.
Have you recently suffered injury in a road accident that wasn’t your fault? Lucky you!
You may not feel particularly lucky with that searing pain in your neck and across your shoulders. You are struggling with virtually everything – you can’t move your head suddenly without being in agony, driving, especially reversing is impossible, standing in the kitchen preparing dinner is uncomfortable and you can’t even sit and watch TV or play games on your computer without getting stiff and sore. How can I possibly be lucky, you ask?
You are lucky because at the moment, and until 31st July1, you can claim a reasonable sum by way of compensation for that agony.
If you are in pain for 3 months you should recover compensation for your misery of about £2,000 together with any other losses such as lost wages, travel costs for medical treatment etc. You can engage a solicitor, who will run your claim on a ‘no win no fee’ basis. You will need to sign paperwork, attend a medical appointment and in rare cases you might have to go to court. If, after your medical examination the doctor recommends physiotherapy or some other treatment your solicitor will usually organise that for you.
If you are unlucky, your accident happens on 1st August 20201 or later. By then, the amount you will get for your 3 months of misery will have been reduced to £225 – contrast that with a 4 hour flight delay that earns you £400. Perhaps worse than that, you are not likely to find a solicitor to represent you 3. Instead you are expected to run the case yourself – you can access the website portal here: www.officialinjuryclaim.org.uk
It has been very well designed, it’s straightforward to input your details and will run through the initial stages quickly and efficiently, contacting the relevant insurance company and seeking a decision whether they accept their insurer is to blame.
If they do accept responsibility the website will take you to the next stage which is to organise a medical report to assess your injury. You will have to choose which expert to go to. When you’ve been examined, the expert will prepare a report and upload it on to the portal. You will have to decide whether it fairly reflects your injury. There is a good chance that you’ll still have been in pain when you visited the expert – who will then speculate on when your recovery is likely to take place.
There is to be a mechanism that allows you to delay your claim at that stage, letting you wait to see if you do recover as expected or if you are slower to heal that anticipated. No doubt however, the insurers will want to hurry things along and there may be some pressure from them not to wait.
If you don’t like the report, the expert didn’t listen to you and now appears to be describing someone you don’t recognise, or mixes right and left there should be a mechanism for challenging that. How that works isn’t clear – that didn’t form part of the demonstration we have seen and may not have been fully worked out yet, after all, there’s plenty of time until August isn’t there?
What if the insurer doesn’t accept liability? But it was a rear-end shunt I hear you cry! You would be surprised at the number of denials we’ve had for apparently straight forward claims and more frequently these aren’t about the fact of the accident, but arguments about whether the impact was hard enough to cause any injury. Insurers are also very suspicious and there seems to be a “golden window” of claiming – claim too soon or too late and you must be faking – but after 30 years in practice I still haven’t worked out what that “golden window” is as it is completely arbitrary. There is also a stated intention by some insurers to deny every claim in the hope that you just go away.
But, you’re made of sterner stuff, and you haven’t got back to work yet because you’re in too much pain, so you decide to fight.
Now, instead of getting a medical report, you need to go to court so a judge can decide if the insurer should pay. The portal will guide you through filling in the paperwork but it won’t pay your court fee. We think this will be the standard sum, so you’ll have to find £80 from somewhere, which you won’t get back if the judge doesn’t find in your favour. If the insurer is found to be liable to pay you, the court fee should be refunded, although whether you’ll get that straightaway or have to wait until the end of the case isn’t clear.
Once you have your judgment, you go back into the portal to get your medical report. Given up yet? No – well done you, as I expect most claimants will have thrown in the towel by now.
Once you’ve got a medical report that you’re happy with, the insurers will get to see it and will make an offer. The government is going to set a tariff (not done yet, but we have some figures they put forward 5 years ago that they’ll probably use) (2). So it should be pretty easy to tell if they’re being fair. Be warned, even if they offer you the right amount for your pain and suffering (remember that’s £225 for 3 months- worth) they will quibble about everything else, your earnings loss, your taxi fares etc.
And how long is this all going to take? Well, if you’ve suffered a whiplash that’s lasted 3 months, the chances are you’ve gone back to work, so you’ll have to fit all this in around your normal routine even though you’re probably still feeling ropey with that pain in your neck. Often the doctors who prepare the medical reports are practising GPs so will have fairly restricted appointment slots – can you get the time off? Then after a long day at work, you’ll need to find half an hour or so between shopping, making dinner, bathing the kids walking the dogs etc, to log into the portal to complete the next stage of the process.
As a solicitor who has acted for claimants for over 30 years my big concern is the extent to which the system relies on the insurers to act in a professional manner. Insurance companies are not professionals, they’re commercial businesses. There is no code of conduct requiring them to act ethically or honourably like there is for solicitors. Their primary responsibility is to their shareholders and profits.
The system envisages that if your doctor suggests a further medical report is necessary, the insurer will take responsibility for organising and paying for that. The system envisages that if a doctor concludes that you are more seriously injured than you thought you were that the insurer will advise you to take legal advice and leave the website process. The system envisages that the insurers will organise and pay for rehabilitation if that’s recommended. The system envisages that, having made an offer to settle, the insurer will actually pay up. There are no mechanisms for any of these things to be mandatory – so why would an insurer do any of them when they go against the best interests of their shareholders?
We have some of the most congested roads in Europe – I wish you the very best of luck.
3. Motor Insurers Bureau Mission Statement: “Deliver a solution that empowers anyone to make a low value personal injury claim without any legal help”