Whiplash Reform Update
The Ministry of Justice has launched a short consultation on issues relating to the fees charged for medical examinations and tackling pre-medical offers in whiplash cases. To assess the extent of a Claimant’s injury medical evidence is required from an expert to determine what injury if any was caused as a result of an accident. This has been established practice for many years. Indeed it is good practice to obtain a report from an appropriately qualified expert.
Over recent years insurers have adopted a strategy of offering to Claimants what are referred to as pre-medical report offers. This means the insurers will offer an amount of money to a Claimant in full and final settlement of their claim before the extent of the injuries has been assessed by medical experts. In my respectful submission this does not justice to the motorist responsible for the accident whose insures are paying the claim because a payment may be made to a Claimant when the Claimant is not entitled to any payment at all because in fact they have not suffered an injury as a result of the accident. In some cases Claimants pain and suffering is not caused by an accident but caused by unrelated factors.
Alternatively the Claimant’s injuries are not so serious so as to warrant the level of compensation offered by the insurers. The end of product is the insurers are paying too much to Claimants which is not in the interest of any motorist.
In the Claimant’s interest, if you are a Claimant and you are offered money by an insurer you should be wary because the insurer may not offer you enough. Whiplash injuries can develop into long term and in some cases life long problems which require ongoing and extensive physiotherapy treatment and medication. In serious cases the injury can be disabling and cause you to have to change your job. In these cases it would be appropriate to claim substantial damages including damages for actual financial loss arising from the cost of medication, the cost of treatment and loss of earnings.
Often at the outset of a case it cannot be said whether the injury will develop into a long term serious injury or whether it will be a minor short term injury.
My strategy with all Claimants therefore would be to advise them to embark upon a period of recovery and treatment and then have the injury assessed by a medical expert to determine the severity of the injury before the claim is assessed.
In these circumstances you as the Claimant will receive the appropriate award of compensation and equally the motorist and insurance industry will only pay out what they are liable to pay.
Certainly if you accept a pre-medical report offer you would be taking a significant risk that you would be under compensated in some cases substantially by accepting the offered amount.
Matthew Winder is a Senior Litigator member of the Association of Personal Injury Lawyers based at our offices in Lancaster, Kendal and Barrow.
Dated 8th May 2014