Whiplash: A political rather than a medical diagnosis?

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1 Whiplash: a political rather than a medical diagnosis?,, Temple The Government believes that there is a major problem with false whiplash claims and over the last two years has consulted upon and introduced changes in the law to tackle the problem. Further measures are on the way. The purpose of this talk is to consider: what evidence there is for such a problem (b) what steps the government has proposed to tackle the problem (c) what changes have actually been brought into effect so far (d) what we can expect in the future. The story so far February 2012 Whiplash Summit in Downing Street December 2012 Consultation Paper on reducing the number and costs of whiplash claims October 2013 Government Response to Consultation Page 1

2 May 2014 Letter from Lord Faulks consulting on various specific proposals including fixed fees for medical reports August 2014 Second letter from Lord Faulks and amendments to CPR and RTA Protocol introducing fixed fees for medical reports, and changes to rules to prevent cases being settled prior to obtaining a medical report; with promise of further reforms to come The evidence for a problem with whiplash Between 2006 and 2010, the number of reported road traffic accidents (RTAs) fell by around 20%. During the same period, the number of claims for personal injury arising from RTAs rose by around 60%. Some 2.7 claims for whiplash damages are made for every accident reported and Department of Work and Pensions Compensation Recovery Unit data indicates that around 70% of RTA PI claims are for whiplash injuries. This rate is significantly higher than in other countries: a 2004 comparative study shows that the equivalent rate in Germany to be 47% and Spain 32%, whilst in France the rate was just 3%. - MOJ Consultation Paper on Reducing the number and costs of whiplash claims, December 2012 The government relies on two pieces of evidence: the number of RTA claims (of all sorts) is going up while the number of reported RTAs is going down Page 2

3 (b) a greater percentage of the total RTA claims relate to whiplash claims in the UK than in the rest of Europe. Increase in reported numbers of RTA injury claims There has indeed been a 60% increase in RTA insurance claims between 2006 and However the same figures show that there was also a 60% increase in clinical negligence claims during this period. Clinical Negligence Employer liability RTA Other Public Liability not known Total 2011/12 13,517 87, ,489 4, ,863 2,496 1,041, /11 13,022 81, ,999 3,855 94,872 3, , /10 10,308 78, ,997 2,806 91,025 3, , /09 9,880 86, ,072 3,415 86, , /08 8,876 87, ,905 3,449 79,472 1, , /07 8,575 98, ,821 3,522 79,841 1, ,784 It does not follow from that the claims made are false. Decrease in number of RTAs Figures for the number of RTAs come from a document produced by the Department of Transport called STATS19. There has been a steady reduction in RTAs figures since The government itself recognizes that these figures are unreliable because they are tainted by massive under-reporting when compared Page 3

4 with hospital A&E data. This is confirmed in the Department of Transport s Road Safety Research Data Report No which states: there is general recognition and acceptance that the STATS19 record is an underestimation of the actual number of road traffic accident casualties. This has been acknowledged for some time and studies have been undertaken which provide estimates of this shortfall, but the issue is how constant over time are the levels of under-recording, misclassification and under-reporting, especially of serious accidents, to the police. And, if they are not constant, by how much have they changed so that the implications can be assessed to inform road safety policy and practice to the end of this target period. Greater percentage of the total RTA claims relate to whiplash claims in the UK than in the rest of Europe This assertion comes from a 2004 Study by the Comité Européen des Assurance (the European equivalent of the ABI). Facts from this paper: Italy has the highest number of RTA claims per head of population (82 claims for every 1,000 Italians) the UK and Germany come second with about 48 claims for every 1,000 people the average cost of a whiplash claim in UK ( 2,878 in 2004) is one of the lowest in Europe; the cost in other countries is Page 4

5 as follows: 4,288 in Italy, 6,050 in Norway, 16,500 in the Netherlands, and 35,000 in Switzerland. The paper shows a greater percentage of the claims relate to whiplash in the UK than anywhere else. Some of the figures look very odd. Italy and Norway have similar but slightly lower percentages of whiplash claims to the UK: with 66% and 53% respectively compared to 76% in the UK. But according to the paper only 3% of claims in France related to whiplash. This is such a discrepancy that it calls into question the reliability of the figures. There is another possible explanation for why the UK has more whiplash claims than anywhere else. These claims typically arise from rear end shunts in slow moving traffic. In 2002 the UK had 30,403,000 vehicles with a total roads length of 245,000 miles (see the Department for Transport s Road Length Statistics, Statistical Release, June 2011) or about 400,000km. France had roughly the same number of vehicles 35,396,000 but 2½ times the length of roads at just over 1 million km. Great Britain is a small island with lots of cars crammed onto a small road network is it really surprising that we have more whiplash claims? Page 5

6 Proposals in the December 2012 Consultation Paper In the Consultation Paper from December 2012 it was suggested that the LASPO / Jackson reforms would reduce fraudulent claims, and in addition three specific proposals were made: improving diagnosis of whiplash injuries by having medical panels appointed or accredited by the court; (b) (c) increasing the threshold of the small clams track for personal injury cases from 1,000 to 5,000; giving the Information Commissioner more power to punish companies sending unwanted text messages, encouraging people to pursue whiplash claims; (NB since May 2011, ICO has had power to issue fines of up to 500,000 for breach of the Privacy and Electronic Communications Regulations 2003). Proposals in the October 2013 Response Following the consultation, in October 2013, the government published a Response to the consultation saying which proposals would be taken forward: medical panels would be created backed up by an accreditation scheme, so that only doctors with expertise in whiplash could advise in such cases; (b) ending the practice of insurers making offers to settle whiplash claims without obtaining medical evidence; Page 6

7 (c) encouraging insurers to share data on suspected fraudulent claims with Claimant solicitors; the Insurance Fraud Register was launched in 2012 by the insurance companies to share data on potential fraudsters; the suggestion is that the insurers should give Claimant solicitors access to this; (d) encouraging Claimant solicitors to carry out more effective checks on their potential clients before taking them on; (e) undertaking further research to determine the extent of fraudulent claims; (f) banning claims management companies from offering cash inducement to consumers to make claims; this had already become law on 01/04/13; the government is considering extending this ban to lawyers; (g) encouraging the development and more widespread use of vehicles fitted with advanced emergency braking systems. It was also announced that (following opposition not only from Claimant solicitors but from the HoC Transport Committee) that the proposed increase in the small claims threshold would be put on hold for the time being. This can only be a temporary reprieve. Since April 2013 the threshold for most cases is 10,000. The current threshold of 1,000 for PI cases was Page 7

8 introduced with the original CPR in It has not been increased with inflation. If it had been the threshold would now be over 1,500. May 2014: First Letter from Lord Faulks The letter contained consultation on some further specific proposals: fixed fees for medical reports in soft tissue injury cases; (b) allowing the Defendant to provide its own factual version of the accident to the medical expert (c) prohibiting the Claimant or Defendant from having a financial interest in the medical agency used to commission the report. Actual changes coming into effect on 01/10/14 With effect from 01/10/14 in respect of all RTA soft tissue injuries (NB not just whiplash claims) whether proceeding in the portal or in the fast track (so for claims up to 25,000 - where the accident occurred after 31/07/13-10,000 if earlier) the following changes in the law have been introduced: Part 35 (Expert Evidence) has been amended so that permission will initially only be given for one medical report which must be a fixed cost report - curiously this also seems to apply to Multi-track claims; Page 8

9 (b) the maximum recoverable sum in respect of the first medical report is fixed at 180; (c) the treating doctor is not allowed to provide a report save in exceptional circumstances (d) the cost of a further report is only recoverable where justified (in his second letter Lord Faulks says it can only be justified where it is recommended in the first report) and the fees are limited as follows: orthopaedic surgeon 420 Accident and Emergency consultant 360 general practitioner 180 physiotherapist 180 (e) the RTA Protocol has been amended banning either side from making offers until a fixed cost medical report has been obtained; (f) to reinforce this Part 36 has also been amended so that if the Defendant makes a Part 36 offer before he has received a medical report, the Claimant has 21 days not from the date of the offer, but from the date he serves the Defendant with a medical report to consider the offer (i.e. the Defendant gets no costs protection until the Claimant has provided a report). Anyone pursuing a whiplash claim (or indeed any soft tissue injury claim) must now attend a medical examination if he wants to progress the claim. Page 9

10 The future There are two further reforms in the pipeline: accreditation of the doctors allowed to prepare the initial report; and, (b) preventing either party using medical reporting agencies in which they have a financial interest. Page 10

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