I don’t often write or talk about my pain, cause by a car accident whiplash injury a decade ago. You know why? Cause it’s boring. It’s boring for me putting up with it day after day and it’s sure as hell boring for anyone else to listen to me whinge about. So mostly, I don’t. But something has really got me riled and I feel the need to get it off my back, as it were.
The consultation period ends today for Government proposals, announced out of the blue in George Osborne’s Autumn Statement, to slash access to justice for hundreds of thousands of ordinary people in the UK. This was first mooted with the aim of reducing ‘whiplash fraud’ but now seemingly extends to cover all sorts of injuries, including injuries at work.
George thinks that there should be an increase in the Small Claims Limit for damages for pain suffering and loss of amenity from £1000 to £5000 for all claims, so if you have an accident which isn’t your fault and suffer a genuine injury valued at less than £5000, you’ll need to pay for your own lawyer and go through the Small Claims Court. To put that in perspective, that’s up to 95% of the 759,763 road traffic accident victims in 2014, or nigh on 85% of the 208,310 claims by those injured at work, through public liability or the fault of occupiers. George seems to think all those people are fraudsters and compensation need to be made much more difficult for them to achieve.
George is proposing no compensation whatsoever for “minor soft tissue injuries”.
George knows full well that the vast majority of accidents involve damages for pain suffering and loss of amenity well below £5000.
So why is the UK Government so hell bent on these changes? Well, partly because we have undoubtedly developed more of a hunger for compensation than was once the case. We trip on a paving stone, a quick £900. We have a minor bump in the car, a nice £1600 towards a holiday for a few days neck ache. We all know the tales and have met and seen the evidence. I watched two people I know have a minor bump the other week and take the day off rubbing their hands at the thought of an easy, uncontested pay out. It’s wrong, and it needs getting a grip of.
But is George using a sledgehammer to crack a nut? I believe so, and that sledgehammer will deny justice and the right to justice for many many people who are not frauds, but who are genuinely blameless victims who will no longer get the compensation they deserve. He is allowing the insurance industry to swerve their responsibilities, knowing full well that most people on low or regular incomes may not fight for their rightful recompense due to ignorance or fear of litigation, fear of the unknown, or they may simply be incapable of paying for their own legal representation, especially if they have already lost money due to their injury. George claims people can represent themselves – what utter nonsense, setting the legally uninitiated against experience insurance assessors or lawyers in front of a District Judge – the notion is preposterous.
In the weeks following my car accident, in which the other driver was entirely at fault and pulled out suddenly in front of me, I was in a huge amount of pain from headaches, bruising and sickness. I was bed ridden and didn’t work. For the first two years following the accident I tried to carry on as normal, learning my limitations but having many periods sofa bound and incapable of normal activity. I was consistently pressured to ‘settle’ and it took all my strength to resist during the good weeks. After two or so years I had learned my limitations the hard way and suffered many setbacks and constant low level pain, coupled with periods of intense and debilitating back pain, where I would be incapable of walking or any activity. Whiplash didn’t just cause me pain for a week, it changed my life. It changed me. Everything about me and the way I lived my life. Yet, in the initial four year period after my accident, my ‘claim’ was still assessed at under £5000. I’m not sure at which point George would have considered me well or capable enough to take my own case to court. I was broken, body and mind.
Now, I tell you this not for sympathy but to make you think. What if this were you, or your parent or child? My case is unusual in that, from a relatively minor accident, I suffered a disproportionate amount of ongoing pain and loss of amenity, but let me put this to you: most people who have accidents and who are genuine have a few days off, lose some pay (especially if self-employed) and have some on going pain for a while, some worse than others. Most not as bad as me, but the majority in the under £5000 band. They deserve to be compensated, if they have paid for insurance or if the accident is not their fault. Why should they have to pay for legal representation to do so? Why are we helping the insurance industry evade paying out for rightful claims?
My whiplash experience, on the whole, was an objectively interesting one on many levels and I have long considered that the whole system needs to be overhauled. I sincerely think that this Government are not overhauling it for the benefit of us all, but wholly for the benefit of the insurance companies. Fraudulent and frivolous claims do need to be eliminated, and it is well within the insurance industry’s capability to do so. We have in the UK a horrendously adversarial system which does not benefit the victim, who finds themselves bounced back and forth in an endless game in which insurance companies pay out millions and millions to lawyers, assessors, accountants and experts, whilst genuine victims are repeatedly questioned, examined, doubted, perhaps filmed and sometimes even vilified. The professionals always get handsomely paid, the victims often feel like the legal process was worse than the accident. This can’t be right.
It is my opinion that a far less adversarial and much more cohesive and comprehensive system be organised, instead of George’s sledgehammer.
- Everyone who has an RTA accident and claims a whiplash injury is logged, isn’t that what computer systems are for? This would also catch repeat fraudsters.
- Eliminate non-medical report supported cash payments for injury, as suggested by George. I agree on this.
- A bank of medically trained and independent assessors evaluate whiplash victims from the outset, creating a record or chain of factual references.
- Accident at work victims are treated entirely differently, and do not form part of these ‘reforms’.
- Regular contact is made with RTA victims, monthly if necessary, to monitor progress.
- A three monthly medical assessment or GP observation is made, supported by employment records for those claiming incapacity.
- A diary is obliged to be kept by the victim, documenting pain and suffering. This should be a universally agreed format document.
- There is liaison between the independent medical assessor, who can also give evidence should any case come to trial, the insurers and any legal representation. This should be one person, or firm, for consistency.
- Information is passed between all sides, instead of the ridiculous adversarial system we have. No-one should have anything to hide, if truth and justice are to be prevalent.
- Most fraudulent claimants will be caught out by this process. Genuine victims, especially those with longer term suffering, can’t be caught out, as they are simply telling the truth.
- There should be an agreed acceptable payment for those suffering minor RTA whiplash damage to complete minor claims in a timely and fair manner.
- More complex claims should not be dealt with in the adversarial way which they are now. If the pain becomes chronic, then the case should be escalated after a universally agreed period to ensure that victims are adequately represented legally by a solicitor used to dealing with serious RTA claims, and medically by the correct expert. Too often these complex claims are mishandled and poorly executed, causing unnecessary stress and inflated costs which benefit no-one.
- A more comprehensive system would cut costs and clear channels for the sensible, equitable and positive resolution of claims. It would also cut fraudulent and frivolous claims, which is something everyone wants.
Perhaps the very worst thing for me, a very determined and capable woman who didn’t want to be a ‘victim’, was the frequent insinuation that I was a fraud and the constant pressure to prove I wasn’t a liar, and to prove I was in pain. The whole system and many of it’s professionals were exhausting, aggressive, unsupportive and relentless. How is this a good system and why are we not seeking to address this, instead of simply removing ordinary people’s rights to justice?
I think the Government’s reforms are misguided and are fighting to protect the wrong people with there misjudged sweep all changes. They should think again, if they sincerely want justice to prevail.