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Can the government stamp out fraudulent whiplash claims?

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Whiplash claims are on the rise, fact or fiction? Despite what many people may think this statement is untrue but as claims decrease insurers and the government are introducing new measures to clamp down on fraudulent claims.

The most common type of injury arising from road traffic accidents is the often maligned “whiplash”. Our bodies, especially our necks and backs, do not take kindly to being jolted. Even with a collision at a fairly low speed, a painful and long-term injury may result. No two cases are the same. A large range of factors will determine how seriously we are affected.

The problem with a whiplash injury is that, despite the fact that such injuries are very common, as soft tissue injuries, they are almost impossible to prove clinically. Unlike a broken bone, which will show up on an x-ray, there is no scan or test which will prove definitively that such an injury is present.

Fuelled by the misconception that the number of whiplash claims has risen dramatically in recent years, some insurers have sadly begun to form the view that, in the absence of objective evidence, all claims for compensation in respect of whiplash injuries must, at best, be dubious or, at worst, downright fraudulent.

Although the number of whiplash claims actually fell by 16% last year, the Government, urged by its supporters within the insurance industry, continues to suggest measures designed to combat the risk of fraud. Many such measures are to be welcomed. No reputable firm will wish to be associated with claims that are not genuine. A restriction on unsavoury advertising practices, for example, is sensible. Likewise, a ban on the widespread insurers’ practice of making “pre-medical offers” – proposals in settlement made to a Claimant without proof that ANY injury was sustained - is long overdue.

The latest Government announcement proposes that those claims which are found to be “fundamentally dishonest” will be dismissed in total. This removes the current discretion of the trial Judge to separate those items which are genuine from those which are not and to rule accordingly.

As such a small proportion of such cases ever reach trial, it is far from clear whether these measures will have the impact which is intended.

Perhaps the greater risk is that this new power will be used as a tactic by insurers in deserving claims. They are very much in the majority. Insurers often make allegations of exaggeration. Usually, those allegations are undeserved. If genuine Claimants are forced to settle for a lower amount through fear of getting nothing at all, then the pendulum will clearly have swung too far the other way.

If you have been injured in an accident or would like to speak to someone about making a claim then contact a member of our Personal Injury Team.