Why I know the personal injury reforms are unfair on innocent victims

Changes to the way personal injury claims for people involved in road traffic accidents are handled will leave claimants at a disadvantage when it comes to access to justice and their right to compensation, concerned lawyers - including myself - believe.

The so-called "whiplash" reforms, which the Government has recently pushed back to April 2020, will introduce an increase in the small claims limit from £1,000 to £5,000 for injuries arising from a road traffic accident and £1,000 to £2,000 for other injury claims.

The Government says the reforms are needed because claims currently are 'minor, exaggerated or fraudulent' which it says is leading to an increase in car insurance premiums for innocent motorists.

However, this is despite an absence of reliable data on insurance fraud with official statistics showing that the number of claims and the costs of claims have fallen dramatically over the past few years.

Even so, the Government is pressing ahead with the reforms although its reasoning is simply not supported by the evidence and the proposals have been heavily criticised by MPs, the Justice Select Committee and solicitors' groups alike.

From personal experience of representing people in the Bristol and North Somerset area for many years, I have found instances of fraud to be very rare and, in the one or two cases where fraud has been suspected, appropriate action has been taken.

Legal representation

The vast majority of whiplash claims are valued at less than £5,000. Whilst some are straightforward, some are incredibly complicated, particularly where fault is disputed or when there are complex arguments about 'causation' or 'mitigation of loss'.

For ordinary people, the prospect of representing themselves in Court against an insurer which, because of its financial resources, is highly likely to be represented by a barrister, would be extremely intimidating.

The changes mean that any claim up to £5,000 for road traffic claims, or £2,000 for another personal injury claims, will be heard in the County Court where you either have to represent yourself or pay for a lawyer to represent you, but without being able to reclaim the costs of this.

This will put ordinary people who cannot afford a lawyer at a huge disadvantage, and people will simply be scared off from either making a claim or asserting their legal rights.

Unfair on the less well off

About 18-months-ago, I met Dr Liam Fox, North Somerset's MP, to discuss the worrying impact of these reforms on ordinary people.

I explained that the Government's plans will take access to justice away from ordinary people and place it in the hands of insurers who are often wasteful, untrained, uncooperative and/or aggressive, pushing up costs and creating delay.

The proposed reforms will limit access to justice for people with disabilities, children, the elderly and the disadvantaged. Access to justice - and the quality of that access to justice - would be determined by someone's ability to pay, not the merit of the case or the harm that has been done. This is not a situation I believe anyone would wish to see.

Practical hurdles

In addition to the above, claimants will also face practical hurdles. Law Society president Joe Egan says research has shown that 76 per cent of medical experts would not accept instructions from claimants without a lawyer.

He added: "These changes will mean people injured through no fault of their own will struggle to get justice. The Law Society does not accept that these limits are reasonable and we continue to oppose these reforms."

A group of MP's has also called on the Government to scrap the changes and delay them until the effect of reform over the last five years has been evaluated.

New compensation limits proposed

There are also now proposals to set fixed amounts for whiplash compensation which critics argue puts the power to decide these limits in the hands of politicians rather than the judges who hear the cases in court. These are:

• £225 total damages for injuries lasting less than three months;
• £450 for injuries up to six months;
• £765 where injuries last nine months;
• The maximum fixed tariff for a whiplash injury, applying where victims have suffered for up to 24 months, is £3,725.

The draft order of the Civil Liability Bill, which contains the whiplash reforms, also states that a 20 per cent uplift in damages may be awarded if the court is satisfied there is a higher degree of pain, suffering or loss or amenity or if the circumstances are exceptional or a psychological injury has been suffered. However, it is expected that this will be an extremely high threshold.

The above 'tariffs' are completely out of line with common law and fail to recognise that all cases are different and that injury affects different people in different ways. There is not a 'one size fits all' solution.

However, in order to be eligible, a victim must be able to produce evidence of the injury from an accredited medical expert.

Simon Stanfield, chair of the Motor Accidents Solicitors Society, commented: "Our hope is that peers will see it for what it is - a poor defence of the Ministry of Justice's land grab of an independent judicial process."

Case studies

Two examples of cases I have dealt with recently illustrate how the implementation of these proposals will hurt ordinary people:

• A claimant initially contacted me for legal advice after suffering soft tissue injuries including cuts, bruises, whiplash and a fractured foot after a head on road traffic collision which was not his fault. In that collision, the other driver died. A comment that the claimant made to me rang alarm bells that his cognitive abilities had also been affected. But for the head injury, the value of the claim would likely have been less than £5,000. If the planned reforms are implemented, this man would almost certainly be unable to afford a solicitor with the substantial risk that his brain injury would never have been picked up and he would have gone uncompensated;
• A claimant who suffered severe back injuries as a result of an industrial accident was off work for several months and required spinal surgery. On the face of it, the claim was likely to be valued at a substantial sum. However, ultimately through investigation by a medical expert, the value of the claim for injuries was less than £5,000 because - unknown to the claimant - he would probably have suffered the problem in any event at some stage in the future because of existing underlying problems with his back that he was unaware of. The situation was of no fault of any party. However, under the current proposals, the claimant would have faced a potentially large legal bill because he would not have recovered any contribution towards legal costs from the defendant.

The Civil Liability Bill is currently making its way through Parliament.

For help and advice about this area of the law, please contact Wards Solicitors' Accident and Injury Team.