The whiplash “industry” of claims management companies, solicitors, medical reporting agencies et al provokes strong views from those who are part of it and those who deal with it.
Those who represent injured claimants with damaged vehicles regard themselves as obtaining access to justice on behalf of victims, from plutocratic insurance companies who have taken the premiums for the very risk that has materialised.
Insurance companies conversely regard the whole superstructure as riddled with fraud, and absent proof of fractured vertebrae, each claim is either exaggerated at best or fraudulent at worst.
The legal press and social media in the last couple of months, has been full of coverage of the views of those with an interest in the reforms on either the part of the insurers or those who represent claimants, vociferously arguing the toss with the publication of Reforming the Soft Tissue (‘whiplash’) Claims Process a copy of which can be found here: Reforming the Soft Tissue Injury (‘whiplash’) Claims Process.
It is hard to resist the conclusion that more heat than light has been generated by the debate so far: both sides are overstating their case, with the insurers painting a gloomy picture of a fraud riddled compensation culture dragging the insurance industry down to bankruptcy and in turn claimants representatives seemingly suggesting that it would be positively un-English if the Small Claims track limit were to be raised.
On a more human note there is a very real expressed fear amongst claimants’ representatives that significant reform will imperil the viability of their businesses and lead to wide ranging redundancies. The same concerns afflict the insurance industry’s panel firms to a lesser degree, but are expressed in a more muted tone.
The further conclusion that I have drawn is that the debate is not driven by evidence: nor does the consultation represent the fruits of any exercise in evidence based policy.
The pity is that there are undoubtedly a number of issues thrown up by the debate which would benefit from the production of evidence, to inform rational decision making for the collective good.
The starting point is surely to determine whether whiplash is a genuine condition or not. I have fond memories of litigating these claims in the 1990s when a series of studies from the Baltic countries, were regularly produced by medical experts instructed by the defence to suggest that whiplash in the UK was an illusory condition, or largely so.
Such views were always counter to the mainstream and indeed common sense. On the internet, one can observe videos of crash tests using dummies, at 20 mph, which illustrate vividly how a strain injury might be caused. Equally one can observe videos of impacts at 3mph and wonder how on earth anyone with a human neck could possibly sustain injury in that context.
If one takes the view that a physical whiplash type injury may well be sustained in a negligently caused collision to the extent that is more than de minimis, then the common law would prescribe that a remedy in damages should be given: to the full extent of the loss, not one penny more, nor one penny less. Because the common law is judge made law, the levels of damages awarded are those devised by the judges.
The next issue then is in what forum and against what criteria, should full compensation be awarded? Nearly 20 years ago I remember traveling to the Lincoln County Court in the full majestic panoply of wig and gown, my instructing solicitor in tow to argue issues of liability and quantum in a three party road traffic accident trial against two other barristers and two other solicitors.
It occupied a full day of a kindly QC’s time sitting as a Recorder, who took full and proper notes with his Mont Blanc pen poised over his red note book.
Each of the parties claims was worth about £3000: collectively well under £10,000 was at stake. Even then it struck me as absurd that a quicker and cheaper way of shifting small amounts of money from one party to another on simple criteria could not be devised.
What sort of justice system do you want to determine liability and award a remedy? You can have one where a wise man or woman sits under a palm tree to hear disputes between parties. They could each pay him or her a donative of £10 by way of fee: he or she would listen to each side’s version of events, with a fixed time of 15 minutes and then give a decision and remedy based upon what he or she considered fair. Simple, quick and cheap.
Or you can have a more involved system, with a settled system of laws, which grade results by ever finer and more complex criteria, to try and reach an increasingly perfect decision. You can require the parties to provide documents by way of disclosure.
You can require witness evidence in written form. You can require expert evidence, on those tricky areas of knowledge that are not within the purview of a layman, to try and reach a better decision.
But all this superstructure, requires a legal profession to operate it efficiently and to advise people how to use it. And that and the steps required by the process cost money.
Which of these models is best suited to whiplash injuries ?
Assuming you take the view that palm tree justice is inappropriate for today’s society and you need a legal system with a degree of complexity and professional lawyers, costing money the question then is who pays?
There are a number of options. The first is to require individuals to pay their own costs. This runs counter to the costs shifting philosophy of English law: that the party in the wrong pays the reasonable costs of the injured party getting vindication at law.
The second is to note that legal costs, or rather the overheads of legal practice are likely to result in a bill in an individual case, which is too large for an individual to reasonably bear.
This in turn leads to a conclusion that such costs should be collectively funded: in the same way that other services such as medical treatment, social security or ill health insurance are.
The question then is what structure of collective funding is likely to be effective?
Provision can be made through the state, through a Legal Aid scheme. If that is not thought to be appropriate, it can be made through insurance, or through other forms of collective organisation such as trade unions or membership organisations.
Buried away in the whiplash consultation is the interesting statistic whose provenance is uncertain that 70% of injured whiplash claimants have BTE insurance.
If that is so then I would suggest a real issue that is thrown up by the consultation but not addressed by it, is how that provision might be extended to 100% of injured claimants.
They would then have the benefit of insurance funding for their costs whether those were incurred in pursuit of a claim allocated to the Small Claims Track or a costs bearing track.
Then the further issue is to ensure that the BTE insurance which is provided is actually adequate to ensure that access to justice is not only preserved but enhanced with proper indemnities and freedom of choice when it comes to instructing a lawyer.
If this could be achieved then the expressed fears of the courts collapsing under the strain of unrepresented litigants or being exploited by claims management companies or unscrupulous Mackenzie friends might not come to pass.