Whiplash Claims in the UK

What, if anything, should the Government do about whiplash claims in this country? The need for our government to take action in regards to whiplash claims would depend on whether there is a problem in the first place. The problem in this respect can take on many forms, namely with either procedure, access to justice, other methods of resolving dispute (ADR[1]), policy, legislation, social dynamics and/or economical climate of the whole country. It is therefore vital to identify the problem and where it stems from, before searching for appropriate solutions. For the purposes of this essay I will be focusing on the past policy changes in regards to personal injury, such as the introduction of legal aid system and the Legal Aid Board, Lord Woolf’s review of the Civil Procedure Rules and Access to Justice Report

[2] and Lord Jackson Reforms. I will aim to demonstrate that there are considerable claims in regards to “compensation culture”

[3] and “whiplash epidemic,”

[4] but those assertions are largely unfounded and seem to serve as an excuse for political and economical goals.

Nonetheless, the current changes are both reactive and proactive, and can be seen as necessary in our current economical climate. The problem in this case is subjective, everyone involved would take a different view depending which interests they represent and the end goal they are trying to achieve. It is difficult to determine whether there has been a major increase in RTA over the years as unfortunately there is no reliable, year by year, statistical data to prove the case either way.

[5] Nonetheless, when it comes to whiplash injury, Jack Straw quoted that it is as high as 80% of all the RTAs

[6] leading to Britain being branded the “whiplash capital of Europe.”

[7] Lord Jackson’s review of PI claims found that claimants had too many benefits, making smaller claims, namely whiplash claims, an easy target for fraudsters. Unsurprisingly ABI

[8] was strongly in support of the reforms that followed and APIL

[9] were strongly against. What is plainly evident is that the two sides reflect the interests of their industries. Fault based liability seems to be turning into cost based liability. Lord Dyson suggests that claimants have “lost all sense of personal responsibility”[10] blaming the media for creating a false belief that litigation is a quick financial boost rather than a genuine solution to a problem “[t]he compensation culture is a myth; but the cost of this belief is very real.”[11] Nonetheless, Dyson diverts the blame from the system “compensation culture is not about what goes on in court, but rather about what happens outside the court room”[12] and rejecting claims that UK has developed the US style litigation culture.[13] Some of the biggest changes to affect whiplash claims have been made first through the Lord Woolf’s review which focused on the disproportion caused by the legal aid system and just recently by Jackson Reforms, which were introduced to target the imbalance generated by the Access to Justice Act 1999 between claimants and defendants. The Jackson Reforms introduced a shift between the claimant and the defendant especially in regards to the small claims track. The new model of Conditional Fee Arrangements that abolish the recoverability of success fees and API premiums mean that the claimant will be covering some of the costs through the awarded damages.[14] These reforms can be seen to not only continue maintaining access to justice through CFA, but also significantly reducing costs and disproportionate fees.[15] These reforms alter the traditional model of full compensation.

Cane draws on Lord Denning criticism of the old model in Lim Poh Choo v. Camden Health Authority[16] “it would be unfair and unreasonable to award damages for loss of earnings if the claimant was in no position to benefit from them.”[17] The new reforms do not target so much how the damages are calculated, but more how much the claimant is actually left with. The courts often find themselves in a difficult position having to calculate a value in financial terms on the injuries and possible future losses which, through their subjective judicial activism, this can result in considerably varied applications of awards. “There seems no reason why a young person should be maintained for the rest of their life by an award of damages (paid by society in one way or another) simply because their spouse or partner was killed through someone’s fault. It is surely not right that the law should reward idleness and discourage gainful activity in this way.”[18] Although Cane was talking about fatal accidents, damaged in whiplash claims are often also difficult to calculate[19] and disproportionate claims[20] can arise when calculating future losses in regards to whiplash personal injury claims, sometimes depending on the length of the claimed pain not severity.[21] The claimants must take reasonable steps to mitigate their loss, but it is difficult to prove whether or not a claimant has done all that is reasonably expected of them to reduce their costs and again it is left up to the courts to decide what is reasonable.

Currently a claimant can include private medical treatment[22] in their damages even if it is available through the NHS “(in more than a third of cases), in order to have an examination necessary for the claim.”[23] This seems to go strongly against the mitigation principle “[i]t is not at all obvious why, sixty years after the beginning of the NHS, we should continue to subsidize those who seek private treatment in the way that the tort system does.”[24] This is something the Government can potentially address in regards to whiplash injury, as these claimants are unlikely to require treatments the NHS does not already provide. Current proposals for medical whiplash panels have been accepted by the Ministry of Justice and are likely to be implemented.[25] The Civil Justice Council has indicated the need for independent panels with an accreditation model to provide skilled advice, but indicated the need for heavy regulation “are assessed and authorised on the basis of their expertise, and not organisations that can then hire or instruct individual doctors who are not then subject to any independent scrutiny or authorisation.”[26] This model looks promising and aims to be “i) flexible; ii) transparent; iii) independent.”[27] Nonetheless, with whiplash injuries being so difficult to prove, medical panels, no matter how independent, are unlikely to spot fraudsters. Their reports would produce largely subjective results. Motor Investigation Unit has been researching more modern solutions through social media and technical equipment like on board CCTV.[28] In Golden v. Dempsley[29] the courts accept the MIU[30] take a different approach to evidence, with more focus on the claimant’s credibility. In reference to Kearsley v Klarfeld[31] and Casey v Cartwright[32] the district judge also notes the need for early access to the car for inspection and medical records, but also stresses that those should not be the main focus. The recent reforms were heavily criticised by the Law Society and APIL who are disadvantaged by the new changes, “propaganda which is generated by insurers on the pretext that insurance premiums will be reduced and that this will in turn assist the country’s economic recovery.”[33] Claire McIvor takes an individualistic approach arguing that the new reforms significantly reduce claimant’s access to justice and impede on their Human Rights, primarily Article 6 “access to justice is, after all, a fundamental human right…under the terms of art.6, it is unqualified in terms of cost considerations.”[34] However, too much access to justice can create chaos, Friedman refers to this as an “Orwellian nightmare,” where access to justice is so open, that anyone can claim for anything with ease, and in effect we end up regulating each other, “we cannot have a system that provides unlimited access to justice; the pyramid must remain a pyramid.”[35] Individuals are likely to fight for their own interests with disregard of how it might affect someone in the future through policies, allowing the pyramid to lose its shape would likely result in a dysfunctional welfare state “not justice but economical inefficiency and waste.”[36] McIvor takes a normative approach, but disregards economical efficiency completely “minimum costs will consist solely of those costs which are necessary …regardless of whether they can be described economically efficient.”[37] This is a good theoretical model, but one that does not work in practice, it is quite an unrealistic model considering economy is the driving force and is what allows UK to compete on an international level pedestal with other leading economies. If we disregard economy with such ease in every area of governance and politics then we are likely to be in constant recession. McIvor states that “substantive aspect of the process should take priority over the procedural.”[38] However, Friedman argues that “[c]heapness and convenience, while obviously important, are hollow and meaningless without a working system of relevant rights.”[39] A working system is one that can continue functioning, that can sustain itself. The reforms[40] represent a give and take scenario, with the abolition of success fees and ATE premiums on the one hand and the 10% increase in general damages[41], 25% cap on success fees from damages and qualified one way cost shifting on the other. It is an attempt to distribute costs between all parties, the claimants, defendants and even the claimant’s lawyers.

Although the claimant is viewed by some as “the little guy in the face of giant corporations”[42] he is also the “one-time litigant”[43] so unlike the defendant, likely an insurance company, in the event the claimant loses their case they will only bear the costs once, if at all.[44] The costs do balance out between the parties that way, just because insurance companies have more assets at an individualistic level, does not mean that they should carry the cost burden so significantly, this would not work with every case. Many claimants do not realise that personal injury civil litigation is not funded through the state, legal aid has been cut significantly and now it is publicly funded, so the costs come back round on us in a vicious circle through insurance premiums. The Jackson Reforms have deep political roots. We have been experiencing difficult economical times and are just emerging from the deepest recession of 2008-2009s since the war time of the 1920s.[45] We cannot look at the recent changes in whiplash claims policy in isolation from the economical and political climate that evoked those changes. It is possible that the “compensation culture” is an excuse, but the problem remains and that is excessive litigation in the whiplash area of civil litigation. There are very little changes that I would advise our Government to make in relation to whiplash claims in this country. I would advise an introduction of a whiplash NHS care package to speedily deal with medical reports of claimants, this is, however, likely to be introduced together with the medical panels and the accreditation scheme. Through past history of the legal aid introduction, then the Access to Justice Act 1999, and now the Jackson Reforms, what is evident is this constant emerging imbalance between the two sides, justice and morality often lies on the side of the claimant and economical prosperity on the defendant’s side, usually a corporation. The way this imbalance is targeted is by restricting the side that is causing an imbalance, it is something that will continue to be done. Social tendencies dictate that whichever party gets better provisions, will take advantage of it and in some cases even abuse it, such as the fraudulent whiplash claims. That is not to say the system we have at the moment is the optimal, best suited system, but it is one that seems to be reflecting the current economical conditions.

The new changes introduced by way of Jackson Reforms are unlikely to stick around long enough to make a long lasting imprint in history, but it seems they are better suited for the current identified imbalance and will remain in place until the scales tip in the opposite direction. Bibliography: Lim Poh Choo v. Camden Health Authority [1980] AC 174. Motto and others v. Trafigura Ltd and another [2011] EWCA Civ 1150. Valentine v McGinty [2010] G.W.D. Langford v Hebran [2001] EWCA Civ 361. Fairley v Thomson [2004] Rep. L.R. 142. Golden v. Dempsley [2010] 9B106073. Kearsley v Klarfeld [2005] EWCA Civ 1510. Casey v Cartwright [2006] EWCA Civ 1280. Simmons v Castle [2012] EWCA Civ 1039. Access to Justice Act 1999. Legal Aid, Sentencing and Punishment of Offenders Act 2012 Law Reform (Personal Injuries) Act 1948. Conditional Fee Agreements Order 2013. C McIvor, ‘The Impact of the Jackson reforms on access to justice in personal injury litigation’ (2011) CJQ. LM Friedman ‘Access to Justice: Some Historical Comments’ 2009 37(1) Fordham Urb. LJ Article 4, 7 CFA covers legal fees; however additional costs such as medical reports and court fees might have to be covered by the claimant in the even they lose their case. Steve Hawkes , ‘Britain’s compensation culture is out of control, insurance chief warns’ (Telegraph, 4 August 2013). R. Lewis, A. Morris and K. Oliphant, ‘Tort personal injury claims statistics: is there a compensation culture in the United Kingdom?’ [2006] JPIL 103. Master of The Rolls Lord Dyson, Compensation Culture: Fact or Fantasy? (Holdsworth Club Lecture, 15 March 2013). P. Cane, Atiyah’s Accidents, Compensation and the Law (7th ed., Cambridge, 2006). Law Society, Reducing the number and costs of whiplash claims A consultation on arrangements concerning whiplash injuries in England and Wales (March 2013). Civil Justice Council, Reducing the Number & Costs of Whiplash Claims. <https://www.telegraph.co.uk/finance/newsbysector/banksandfinance/insurance/10221301/Britains-compensation-culture-is-out-of-control-insurance-chief-warns.html > Accessed 14/03/2014 to 20/03/2014 Chinwe Akomah, ‘ABI seeks ‘radical’ action to tackle whiplash epidemic’ (Post Online, 27 April 2012) <https://www.postonline.co.uk/post/news/2170911/abi-outlines-radical-plans-tackle-whiplash-epidemic> Accessed 14/03/2014 to 20/03/2014 ‘Jack Straw calls for reform of car insurance industry’ (BBC, 27 June 2011) <https://www.bbc.co.uk/news/uk-13922554 > Accessed 14/03/2014 to 20/03/2014 Ray Massey, ‘Europe’s whiplash capital: Compensation culture makes British twice as likely to claim, adding A£90 to premiums’ (Daily Mail, 20 April 2013) <https://www.dailymail.co.uk/news/article-2311979/Europes-whiplash-capital-Compensation-culture-makes-British-twice-likely-claim-adding-90-premiums.html> Accessed 14/03/2014 to 20/03/2014 John Hyde, ‘MoJ confirms plans for medical whiplash panels’ (Law Gazette, 16 January 2014) <https://www.lawgazette.co.uk/practice/moj-confirms-plans-for-medical-whiplash-panels/5039395.article > Accessed 14/03/2014 to 20/03/2014 ‘Fraud – December 2011’ (Weightmans, December 2011) <https://www.weightmans.com/library/newsletters/fraud_-_december_2011/lvi_-_a_fresh_approach.aspx > Accessed 14/03/2014 to 20/03/2014 Graham Hiscott, ‘Budget 2014: George Osborne’s recovery exposed as a con’ (Mirror, 19 March 2014) <https://www.mirror.co.uk/news/uk-news/budget-2014-george-osbornes-recovery-3258255 > Accessed 19/03/2014 to 20/03/2014

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[1] Alternative Dispute Resolution.

[2] Resulting in new legislation, Access to Justice Act 1999.

[3] Steve Hawkes , ‘Britain’s compensation culture is out of control, insurance chief warns’ (Telegraph, 4 August 2013) <https://www.telegraph.co.uk/finance/newsbysector/banksandfinance/insurance/10221301/Britains-compensation-culture-is-out-of-control-insurance-chief-warns.html >

[4] Chinwe Akomah, ‘ABI seeks ‘radical’ action to tackle whiplash epidemic’ (Post Online, 27 April 2012) <https://www.postonline.co.uk/post/news/2170911/abi-outlines-radical-plans-tackle-whiplash-epidemic>

[5] R. Lewis, A. Morris and K. Oliphant, ‘Tort personal injury claims statistics: is there a compensation culture in the United Kingdom?’ [2006] JPIL 103.

[6] ‘Jack Straw calls for reform of car insurance industry’ (BBC, 27 June 2011) <https://www.bbc.co.uk/news/uk-13922554 > [7]Ray Massey, ‘Europe’s whiplash capital: Compensation culture makes British twice as likely to claim, adding A£90 to premiums’ (Daily Mail, 20 April 2013) <https://www.dailymail.co.uk/news/article-2311979/Europes-whiplash-capital-Compensation-culture-makes-British-twice-likely-claim-adding-90-premiums.html>

[8] Association of British Insurers.

[9] Association of Personal Injury Lawyers. [10] Master of The Rolls Lord Dyson, Compensation Culture: Fact or Fantasy? (Holdsworth Club Lecture, 15 March 2013) 6. [11]Ibid, Lord Dyson quoting BRTF, 4. [12] Ibid 11. [13] Ibid 8. [14] Implemented through s44 and s46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012; and Conditional Fee Agreements Order 2013. [15] Motto and others v. Trafigura Ltd and another [2011] EWCA Civ 1150. [16] [1980] AC 174. [17] Ibid. [18] P. Cane, Atiyah’s Accidents, Compensation and the Law (7th ed., Cambridge, 2006) 155. [19] Valentine v McGinty [2010] G.W.D. [20] Langford v Hebran [2001] EWCA Civ 361. [21] Fairley v Thomson [2004] Rep. L.R. 142. [22] Law Reform (Personal Injuries) Act 1948, s. 2(4). [23] Ibid (n 17) 155. [24] Ibid (n 17) 151. [25] John Hyde, ‘MoJ confirms plans for medical whiplash panels’ (Law Gazette, 16 January 2014) <https://www.lawgazette.co.uk/practice/moj-confirms-plans-for-medical-whiplash-panels/5039395.article > [26] Civil Justice Council, Reducing the Number & Costs of Whiplash Claims. [27] Ibid. [28] ‘Fraud – December 2011’ (Weightmans, December 2011) <https://www.weightmans.com/library/newsletters/fraud_-_december_2011/lvi_-_a_fresh_approach.aspx > [29][2010] 9B106073 [30] Motor Investigation Unit. [31] [2005] EWCA Civ 1510. [32] [2006] EWCA Civ 1280. [33] Law Society, Reducing the number and costs of whiplash claims A consultation on arrangements concerning whiplash injuries in England and Wales (March 2013) 2. [34] C McIvor, ‘The Impact of the Jackson reforms on access to justice in personal injury litigation’ (2011) CJQ. [35] LM Friedman ‘Access to Justice: Some Historical Comments’ 2009 37(1) Fordham Urb. LJ Article 4, 7. [36] Ibid 9. [37] Ibid (n 30). [38] Ibid (n 30). [39] Ibid (n 31) 4. [40] Lord Jackson Reforms 2013. [41] Introduced through Simmons v Castle [2012] EWCA Civ 1039. [42] Ibid (n 31) 6. [43] Ibid (n 30). [44] CFA covers legal fees; however additional costs such as medical reports and court fees might have to be covered by the claimant in the even they lose their case. [45] Graham Hiscott, ‘Budget 2014: George Osborne’s recovery exposed as a con’ (Mirror, 19 March 2014) <https://www.mirror.co.uk/news/uk-news/budget-2014-george-osbornes-recovery-3258255 >

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