Concern as to Government’s attack on whiplash victims

18 Dec 2012

Earlier this week Justice Secretary Chris Grayling outlined proposals for independent medical panels to diagnose whiplash injuries and proposals to raise the small claims limit from £1,000 to £5,000.

The Ministry of Justice argue that the reforms will reduce the number of fraudulent or exaggerated claims made, as such claims will then be subject to proper scrutiny.

There are apparent concerns regarding the diagnosis of whiplash injuries, particular those resulting from low velocity road traffic accidents. The government's response to these concerns is to create a panel of medical experts (either through an accreditation scheme run by a separate organisation, or through a private contractor) that would assess whiplash claims and supply reports in a standard format.

However is this really any different from how things are currently done? Injured claimants are already subject to a medical examination from an independent medical expert, who also has full access to their medical records. These experts sign a declaration of truth in their reports stating that they understand their primary duty is to the Court. Their opinion should not be biased, regardless of whether they have been instructed by the Claimant's solicitors or by the Defendant's insurers.

The second proposal concerns a change to the small claims procedure. Currently, all personal injury claims below the value of £1,000 fall into the small claims track.  Despite the fact that previous consultations in April 2007 and 2009 found no grounds to increase the threshold from £1,000, the consultation has proposed three options:

(1) increase the threshold for road traffic accident (RTA) whiplash claims to £5,000; or 
(2) increase the threshold for all RTA personal injury claims (including whiplash) to £5,000; or
(3) retain the current limit of £1,000.

Cases that fall within the small claims track do not allow the claimant to recover their legal costs in addition to their damages. This usually prevents them from obtaining legal advice.  The concern is that an increase in the small claims limit to £5,000 will deny a large number of genuinely injured claimants proper access to justice as they will be left to handle their own claims without legal representation. Without specialist advice as to precisely what they are entitled to claim for and with no way of valuing the claim for themselves, there is a very real danger of their claims being undersettled.

Many lawyers believe that the proposed changes will harm access to justice, in particular for claimants suffering from whiplash injuries. Whiplash, often referred to as the 'silent injury', is notoriously difficult to quantify and can often be wrongly perceived. The pain and symptoms caused by whiplash are very real and can severely disrupt Claimant's lives. Yet the government's proposals seek to deny injured and vulnerable claimants much needed legal advice and support at a time when they most need it.
APIL (Association of Personal Injury Lawyers) has expressed concerns about the move indicating that such reforms are likely to leave uninformed and vulnerable people at the mercy of Defendants and insurance companies. APIL have indicated that without the ability to seek full legal advice in such circumstances, vulnerable Claimants will be more likely to be exploited by Defendant insurance companies who will encourage Claimants to settle their cases for less than they are worth.
Currently, the Ministry of Justice's plans are still only at the proposal stage and consultation on the matter is not due to close until 8 March 2013.