Last November I had a minor whiplash injury when hit from behind. I found myself consoling the 17 year old driver who had written his car off just two months after passing his test and pointing out that was what his very expensive insurance for.
My 13 year old daughter was in the car. Although she knows the phone numbers of every solicitor who advertises on the radio and can tell you who gives the free iPads out, she had not a twinge to report. She is young and very fit. I am neither and the aching started pretty soon. We needed to get where we were going. I tried to drive on but after realising there were loose parts flapping around I called a taxi. I knew the fare would be high but I reasoned I would be able to claim it back. The taxi driver kindly gave me some legal advice about making a claim plus a review of all the local solicitors to rival the Legal 500!
By the time I got home that night, I was really quite sore. Meanwhile, the 13 year old decided to check FaceBook to see whether news of our drama had hit the big time. Interestingly, the lad who had hit us was only one click away. Despite being from a different town and completely unknown to us, he and my daughter shared 16 mutual “friends”. I have seen fraud cases built on less than that!
Avoiding “capture”
Having had a “no fault” accident, I had become a bit of a commodity. Both my insurer and my garage were keen to get me into their no fault schemes. I was promised a “better” hire car. I pointed out that I had no real need for anything other than something that would get me from A to B, that I could afford spot hire and didn’t need credit hire. My helpful review of the authorities was met with a blank stare!
I didn’t really want to enter “the system”. I do think that the costs of minor road traffic accident claims have spiralled out of control and I (naively it turns out) thought that, as a PI silk used to dealing with multi-million pound claims, I could probably handle my own claim without assistance.
I had decided that if this was just a little whiplash injury I probably wouldn’t bother to claim. Frankly the hassle of taking time off work to have a medical appointment didn’t seem worth it. I have since learnt that some medical appointments are apparently done over the phone! However, knowing what I know, I didn’t want to write off a potential claim until I had recovered. I have had several clients who suffered apparently trivial injuries only to find they were left with long term
disability. Vestibular problems are uncommon but not unheard of following whiplash and can cause misery. I hoped I would recover quickly but knew I had to wait and see.
Making a claim – simples!
I thought there was a very simple solution. I would deal with the other party’s insurers directly. I would ask them to cover the cost of the repairs and my expenses and let them know that I had suffered a whiplash injury but was waiting to see how that developed. How straightforward – I wouldn’t run up unnecessary costs but neither would I be left out of pocket for something that wasn’t my fault.
The flaw in that plan was that the insurers didn’t want me to contact them. I tried looking up the contact details – no number for third parties to get in touch. The other party was able to supply me with the number he had been given. I went through a long automated menu, finally getting to the option of “Press 2 if you are a Third Party”. The message? “In order to maintain our high standards of service for our customers we do not accept calls from Third Parties. Thank you. Goodbye”!
I am now fine. I haven’t needed physio; I haven’t lost any time from work and there are no lasting effects. The garage was able to secure the cost of repairs from the insurers and once they realised they weren’t going to sign me up for credit hire gave me a perfectly adequate courtesy car. But I am still out of pocket from the taxi fare I incurred on the night and a second one when I took my car for a quote. It isn’t a large sum to me but it’s frustrating that it isn’t easier to claim back this expense.
Reforming the system
Aviva are calling today for further reform of the “whiplash claims system” and suggesting lawyers should be taken out of the picture. However, if after 21 years in the law I can’t claim what I am entitled to without going through the legal system I do worry about others being denied access to
justice. My financial losses were trivial but the changes Aviva are talking would mean people who have suffered genuine financial hardship would find themselves without legal support. Will the insurers make things easier for them than it was for me?
Surprising how difficult insurers can make it, isn't it? Anyone would think they wanted to put people off claiming...
What you tried to do would once have been the way to do it, but not any more, and its down to the insurers and their friends at MoJ.
You do not mention that you are supposed to put your claim to the insurers electronically, by completing the form available from the MoJ website, and emailing it to the insurers. I mean no disrespect, but can I presume that since you did not mention this, you were unaware of the expected procedure? If so, then does this not highlight your point even more?
You say that "costs associated with whiplash have escalated". Really?
"Predictable costs" under CPR 45 (II), which can vary, haven't gone up since 2003. Who else has their recoverable costs fixed at 2003 levels?
Since the introduction of the Pre-Action Protocol on Low Value RTA claims, they have been fixed for all RTA cases where the value of general damages and specials (excluding vehicle repair, storage and hire charges) are less than £10,000. They haven't gone up since 2010, and are now being cut. A case which settles pre-action nets costs of just £1350, including success fee. A case which goes to a hearing on quantum nets a maximum of £2350 including success fee. That's it. No more.
The only way the cost of "whiplash" claims can possibly increase is if the Defendants do not comply with the rules (their fault); dispute the case on liability (open to a party to fight a case but must bear costs consequences if they get it wrong); argue fraud (ditto); or if the value of generals and specials is above £10,000, in which case its probably not a "run of the mill" whiplash claim.
Posted by: Paul | 19 February 2013 at 02:30 PM
In theory an unrepresented claimant might be able to use the Protocol but the whole system is geared up towards the Portal which is only for those with representation. Even if you wanted to get into that system, I'm not sure where the forms are given the link from the MOJ site has apparently been deleted! Certainly, the insurers don't provide a handly link on their website! I still think the cost of whiplash claims overall is too high but the real escalation came pre-2003 in response to political changes supposedly designed to reduce the cost of claims to society!
Posted by: Amanda Yip QC | 19 February 2013 at 06:57 PM
My point exactly - on the one hand insurers and HM Govt propose that claimants really do not need legal representation for these matters, while simultaneously making it impractical and difficult to actually "do it yourself" in the way described.
As to costs, I would disagree with you. What escalation? And what precisely escalated?
The amount of recoverable base profit costs is not affected by the way in which those costs are funded - the hourly rate recoverable is that permitted by the Court, and presumably the Court has not increased the hourly rates to reduce the costs of claims to society!
If the base costs for "whiplash" have escalated, then they have escalated just as much for clinical negligence, construction, defamation etc, etc.
The only thing that CFA funding adds is the success fee, but the success fee in ALL RTA cases settled before trial is just 12.5%, and has been since 2003.
Presumably the success fees payable in, say, clinical negligence are much higher than that, so does this mean we should also see the same sort of cuts in costs recoverable by clinical negligence lawyers? After all, surely it would mean significant savings to the NHS and the taxpayer, and surely most clin neg cases can be addressed by the Claimant filling in a simple form and submitting it to the PCT or Hospital Trust?
Posted by: Paul | 20 February 2013 at 02:47 PM