Call to remove general damages for whiplash is based on simplistic and flawed data

The Government’s forthcoming consultation on removing the right of individuals to claim general damages for minor whiplash injuries is based on simplistic and flawed data, according to Martyn McLeish from Cloisters Chambers.

In a blog post attacking the basis for the Government’s proposals, the barrister has said that the cost savings that George Osborne says reform of minor soft tissue injuries will bring were based on outdated statistics.

In his Autumn Statement, the Chancellor stated that the changes to general damages would save the motor insurance industry £1 billion, which would see premiums reduced by £40 to £50 per policy.

However, McLeish says that costs savings are derived from a consultation document written by the Association of British Insurers (ABI) in September 2011.

“It is not only based on old data, but does not take into account reforms to the civil justice system in 2013 which were intended to reduce the costs of litigation and save insurers substantial amounts of money,” writes McLeish.

“That the Chancellor should refer to this document rather than, for example, the two-volume report into whiplash injuries prepared by the House of Commons’ Transport Committee , or the MoJ’s consultation papers on whiplash, may be indicative of his proposal being shaped within a narrow frame of reference.”

McLeish points out that in 2013, the Transport Select Committee found it impossible to give even a rough estimate of the scale of the problem.

He also questioned figures put out by the MoJ in 2015 which said that the number of reported road traffic accidents had fallen from approximately 190,000 in 2006 to around 146,000 in 2014. At the same time, civil servants found that the number of road traffic personal injury claims had risen from around 520,000 in 2006/07 to 760,000 in 2014/15.

“The first figure is derived from the number of accidents reported to the police , and the second by the number of claims registered with the Compensation Recovery Unit,” explained McLeish.

“Not all road traffic accidents are reported, particularly minor ones. It has been estimated that almost twice the number of people attend hospital following an accident than are recorded as having been involved in an accident by the police.

“Evidence that the number of claims is increasing is also inconsistent, or at least not indicative of a pattern of inexorable growth in the number of claims. In 2013, the Transport Select Committee concluded that the number of whiplash claims was in fact going down. The Transport Committee also heard evidence from a range of stakeholders, lawyers, and experts whose evidence on the number of fraudulent whiplash claims ranged from 0.1% to 60%.”

McLeish added that the proposed reform to minor whiplash injuries provided “a copybook example of how the present government balances and prioritises the competing interests of members of society, in this case the rights and interests of the injured as against the pecuniary wellbeing of the general motorist”.

“Perhaps more significantly, Mr Osborne’s proposed reform presents a novel case to restrict access to justice for reasons which are economic rather than principled. An individual’s right to bring his or her claim for injury to court is not only that individual’s right, but the hallmark of a civilised society; to seek to restrict that right for a questionable and uncosted benefit to motor policy holders is a political choice.

“But to abrogate that right to vulnerable members of the community without compelling evidence would be a disgrace.”

Mark Dugdale