The defendant costs specialists

Whiplash injuries to increase in severity

By on May 3, 2017 | 1 comment

Over the weekend, the Guardian published an article titled: “Whiplash: the myth that funds a £20bn gravy train”, challenging the medical basis for such claims and highlighting the fact that in Greece and Lithuania, where there is no expectation of financial gain from whiplash, chronic neck pain following a car crash appears simply not to exist.  (Strangely, @ccesstojustice, who are usually so keen to promote whiplash related stories, did not consider this worthy of a retweet.)

In future (subject to something of a surprise at the next election), damages for “whiplash” injuries will be based on injury duration and costs recovery will end.  Damages will be:

0–3 months  – £225
4–6 months – £450
7–9 months  – £765
10–12 months – £1,190
13–15 months – £1,820
16–18 months – £2,660
19–24 months – £3,725

I previously commented:

“However, I am struggling to envisage any business model which would allow for a reasonable profit to be made (even by CMCs) where damages for whiplash claims with symptoms of under 12 months are £1,190 or less and the claims are not costs bearing. What % of damages could be taken that would enable a profit to be made but leave enough damages for the claimant to bother with a claim? (The one exception to this is if an AI system could be put together that would fully automate the claims process for claimants, without the need for any human intervention, in exchange for a small cut of the damages.)  Either way, massive jobs cuts will follow.”

Having given the matter further thought, I was perhaps being overly pessimistic.

A potential client walks through the door of a solicitor and explains he was recently injured in a road traffic accident.  The solicitor explains how the claims process works and informs the client that because damages are calculated based on the actual duration of the injury there is no point in undertaking a medical examination until the symptoms have resolved themselves and the duration can be accurately determined.

The solicitor goes on to explain that damages are now based on a fixed tariff and shows the client the figures:

“For example, if your injuries last 3 months then you will be entitled to £225.  But if your injuries last 18 months then you could win … I mean become entitled to recover …  £2,660.  Let me know when you are feeling better and we can then arrange a medical examination.”

Based on the figures for injuries with a duration in excess of 12 months, it should be possible for a firm of solicitors to make a reasonable profit charging on a straight contingency fee basis.

Whiplash may not be a myth but I rather suspect that minor (ie less than 12 month) injuries will become a thing of the past once these reforms come into force.  (We may be leaving the EU but we will become a little bit more like our European neighbours in some ways.)  Medical science will recognise all injuries as having a duration of at least 12 months.

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