Transport CommitteeReducing the number and cost of whiplash claims
A CONSULTATION BY THE MINISTRY OF JUSTICE ON ARRANGEMENTS CONCERNING WHIPLASH INJURIES IN ENGLAND AND WALES
A RESPONSE BY AXA INSURANCE
1. Introduction
AXA Insurance is part of the global AXA Group; one of the largest insurers in the world. In the UK it is the 5th largest general insurer and, as such, writes large numbers of motor, EL and PL policies. AXA has a significant interest in the level of damages paid under the civil justice system. In 2011, AXA paid in excess of £250 million in compensation and damages arising out of claims made against our policyholders.
In 2012 we insured some 1,500,000 motor vehicles belonging to private individuals and businesses which produced some 17500 personal injury claims. Our average cost in respect of damages and legal costs for personal injury claims following a road traffic accident (excluding those claims over £100,000) was slightly in excess of £7000. The vast majority of these personal injury claims will have been for so called whiplash injury.
2. Executive Summary
The term “whiplash” is unhelpful and use of it immediately conjures up notions of compensation. Although we use the term in this response, we would advocate calling “whiplash” what it is: neck pain or minor cervical trauma.
Almost unique to Britain, whiplash injury and whiplash claims have now reached epidemic proportions. The UK experience is not mirrored in Europe where, when there were emerging problems, early effective steps were taken to address the issue. While it is right that those who sustain significant genuine injury are compensated, the year on year increase in the number of personal injury claims arising out of road traffic accidents, most of which are for whiplash, has brought the compensation system into disrepute.
AXA Insurance welcomes the Government’s attempts to address the whiplash issue, though we are concerned that the proposals outlined in the consultation merely address symptoms of the whiplash issue and not root cause. To effectively address the issue a more radical approach is required and we discuss some options in our response to Q.8.
Whiplash is essentially a self reported condition. There is a need for accepted medical research which leads to objective diagnosis of the condition. It also needs to be understood that although there may be no organic cause for someone’s pain, that pain may be nevertheless real. We need to be mindful not to create further problems in respect of conditions which are psychological in origin. An emotional and psychosocial aspect of injury and claims for compensation is a common phenomenon.
A robust approach needs to taken to medical evidence so as to ensure independence of the examining doctor. This should not only break the commercial links between Medical Reporting Organisations and solicitors but should require the examining doctor to adopt a more challenging and forensic approach and to not simply be an historian for the claimant. Even though whiplash is essentially a self reported condition the doctor should systematically look for contra indicators. Additional training and guidance in this regard may be required. Among other things, reporting doctors should be measured and monitored on prognosis periods in order to ensure that they are broadly in line with expected norms, eg recovery within a few weeks or months and not the one to two years that is so frequent now.
Reports should be obtained on a joint basis as soon after the accident as possible.
We would also advocate a review of medical records in many more cases than at present and a move away from the rebuttable presumption that records should not be reviewed as a matter of course.
The Small Claims track must be increased to £5,000 for all road traffic accident claims. Not to increase the limit would perpetuate the issue and to restrict the increase to whiplash claims alone would lead to whiplash being re diagnosed as some other condition. However, we are concerned that if the Small Claimant track limit were increased to £5,000, claimant solicitors would still be able to pursue low value road traffic claims under a Damages Based Agreement and paradoxically may receive more by way of costs under a DBA than they would by fixed recoverable costs. If the Government wishes motor insurance premiums to reduce, we would strongly urge that a radical solution is adopted.
3. The Issue—Opening Comments
AXA Insurance welcomes this consultation and the Government’s attempt to reduce the number and cost of whiplash claims for the benefit of motoring consumers. A review of European jurisdictions carried out by AXA suggests that many European states have addressed the issue earlier and more effectively than the UK.1This review is appended at Appendix 1. Based on Compensation Recovery Unit figures for 2011–12 some 830,000 motor claimants were recorded. While it is difficult to be certain as to how many of these relate to so called whiplash, we suggest that the majority of them will. There are in excess of 500,000 incidents of so called whiplash in a year; with any other condition or illness this would be flagged up as a significant public health issue.
However, we do have concerns as to whether the proposals will meet the Government’s objectives. If the issue is effectively tackled, it is said that it could reduce an average motor insurance premium of £650 by some £90. To address the issue we believe that a coordinated response is required from Government involving not only the Ministry of Justice but also the Department of Transport and the Department of Health.
There is much debate, including eminent medical opinion, as to whether whiplash exists. Those in support of the condition will point to evidence that it is particularly prevalent in low velocity impacts while others will compare the mechanics of a road traffic collision with “dodgems” at a funfair or the “jolt” and deceleration of a plane landing. The absence of agreed medical opinion does not assist in addressing this issue. Medical diagnosis of whiplash depends greatly on the history given by the claimant/patient and this lack of objective assessment does not help in tackling the issue. Even where an objective medical classification tool such as the Quebec scale is used, it is impossible to prove or disprove injury at stages 1 and 2. Whiplash is a self limiting condition and symptoms should reduce after a few weeks and months. NHS Choices2 say that in only a small number of cases does pain last for 6 months or more. For ease of reference NHS Choices guidance is reproduced at Appendix 2. Even the Association of Personal Injury Lawyers in its “Whiplash Report 2012—Myth or Fact” concede that about one third of sufferers recover within one month. Yet seldom are such short term effects seen in medical reports which frequently talk of a 12 to 24 month prognosis for whiplash following a road traffic collision.
Some whiplash suffers will be genuine and need medical attention. Others will visit their G.P or Accident and Emergency Department purely for the purpose of having attendance recorded as evidence of injury in support of a claim for compensation. This ties up resources and wastes valuable NHS time with a corresponding impact on the public purse.
Although we support the thrust of the proposed reforms, our concern is that over the last decade or so whiplash claims and claiming for injury following a road traffic accident, no matter how trivial, has become institutionalised and embedded in British culture. In part this is a consequence of the use of the term whiplash itself. It is a dramatic term that promotes and initiates a sequence of events that invariably leads to a claim for compensation. Although these proposals and the full package of “Jackson reforms” will assist, to fully address the issue we believe that a more radical solution is required. Nevertheless, we attempt to answer the Ministry’s questions as constructively as possible as well as offering our thoughts as to what more could be done to address the problem.
4. Part 2—Better Medical Evidence
Question 1. Do you agree that, in future, medical reports for whiplash injury claims should be supplied by independent medical panels, using a standard report form, and should be available equally to claimants, insurers and (for contested claims) the courts?
Answer:
Yes.
A growing trend in the personal injury claims arena is that of law firms owning medical reporting agencies. Examples are Thompsons solicitors and MAPS, Winn solicitors and On-Medical, Quindell and Mobile Doctors and Michael Jefferies Solicitors and Lawyers Medical Agency.
The use of medical legal reporting agencies has assisted in speeding up the time taken to obtain and disclose medical reports. They have also greatly increased the use of General Practitioners, as opposed to specialist consultants, in medico legal examinations. However, at the same time it has become an income stream for many law firms operating in the personal injury sector either through receiving commission, referral fee or through direct ownership.
As an expert witness, the doctor reporting on a claimant in a personal injury claim should assist the court on technical matters within their expertise and their duty should be to the court alone. As such they should not be influenced by the person instructing them.
All these commercial relationships must call into doubt the independence of the medical reporting agency. This is reinforced by anecdotal comment of some doctors that they are required to write reports with certain prognosis periods as if they do not they will receive no further instructions. The solicitor commissioning a report from an agency has a vested interest in the prognosis provided in a report dealing with a road traffic accident claim, such as a whiplash claim. A prognosis of a 12 month recovery period, for instance, would guarantee that the value of the claim exceeds the current Small Claims Track of £1,000 so that the solicitor will recover costs and, in addition, the predictive cost regime for such claims pursued outside of the Portal are directly linked to the damages recovered. The same dynamic will apply to any claim funded by a Damages Based Agreement.
Standard report forms are increasingly prevalent and are in use in respect of Portal claims. We have no issues with standard reports provided that the template for the report asks the right questions. However, a balance also needs to be struck between the cost effectiveness of the medico legal report and the robustness of examination. Standardised reporting must have as its primary purpose improving the quality of the examination and report and not reducing cost. We have come across one General Practitioner in Norfolk who prepares 2,000 medical legal reports a year as well as working four days a week as a GP and having other outside business interests. If one allows for six weeks holiday a year, and assumes an eight hour working day for medico legal reports, it means that this particular doctor must examine claimants and write the report within 11 minutes. We do not believe that this type of situation is in any way unique.
However, we do not object to General Practitioners preparing medico legal reports and, where they are acting as expert witness, do not see a conflict with their normal role as patient’s advocate as it will not be the claimant’s own GP preparing the medico legal report in support of their own claim.
Our contention is that whiplash is generally a self limiting condition and gets better of its own accord. There are some instances where the condition will genuinely last for six months and become chronic, but by and large the condition will recover within a few weeks. Whiplash is essentially a sprain injury and little different to having neck pain after sleeping badly, following sports injury and so forth. Minor, non chronic, examples of whiplash should not be compensatable. However, as the condition is mainly diagnosed through self reporting, and as some claimants are coached before attending medical examination, it is not satisfactory to simply exclude cases where the prognosis is less than six months. Attractive as such an approach would be it would simply reinforce the current trend of a minimum prognosis period of one year and, at present, medico legal reports with a prognosis for full recovery of less than one year, are remarkable. Therefore, a more robust approach is required.
The French legal system requires objective evidence of injury such as MRI scans or X-rays. Although there are established indices or classification of so called whiplash, such as the Modified Quebec Task Force Classification (MQTFC) or Whiplash Associated Disorders scale (WAD), it is impossible to objectively prove or disapprove those conditions falling to stages 1 and 2 of these scales. Most so called whiplash claims in the UK would fall into stages 1 or 2 of these classifications and we would argue that such claims should not give rise to compensation.
As will be appreciated, compensation is awarded for pain, suffering and loss of amenity. This means that medico legal reports and the doctor conducting the examination and taking the patient/claimant history will focus on what the claimant cannot do as opposed to what they can. This difference may appear subtle but could have a profound effect on the approach to medico legal reporting.
We would further argue that doctors preparing medico legal reports for whiplash claims essentially act as an historian by simply reciting what the claimant tells them. There is seemingly little skill required and seldom is a forensic approach evident. Where doctors have tried to adopt a more forensic approach and act as “sleuth” they have been criticised by the courts. The case of Armstrong v First York (2006) effectively states that even where the medical evidence establishing the injury is inconclusive (that is, two experts disagree) the general presumption is that an injury has been caused and that the disputing party is likely to have missed something. A similar position was affirmed in the case of Charnock and others v Rowan and others (2012) where the defendant’s medical expert was criticised by the court for playing sleuth. Thus, it is for the court alone to decide whether a claimant is telling the truth.
However, an approach to medical legal reporting in whiplash claims focusing on what the claimant can do as well as what they cannot do, and adopting a more forensic approach by looking for inconsistencies and contra indicators, such as the claimant being able to do their hair yet are unable to reach up to peg washing on a washing line, might greatly assist the courts in determining whether a claimant is lying or exaggerating for financial gain.
Standardised reporting may assist in this regard and while outside our area of knowledge, an approach similar to that used in the assessment of entitlement for various disability benefits may be a starting point for developing a standardised approach to examination and reporting. However, such an approach would have to be adapted to meet the requirements of the common law of damages and role of the courts and, in doing so, some effectiveness may be lost.
Finally, we would advocate that ALL reports arising out of fast track road traffic claims with a potential below £5000 should be obtained on a joint instruction basis within a prescribed timescale (subject to any limitation issues) from the date of bringing the claim such as three—four months. At present the Civil Procedure Rules say that is it the claimant solicitor who should commission a medical report in a Fast Track case. It should be explained to the claimant before attending examination that symptoms subsisting for more than a few weeks are unusual. The examining doctor should also have details of the damage to both vehicles and photographs, if available, and should have the defendant’s version of events as well as that of the claimant. If the report were obtained on a joint instruction basis it would be disclosed to both claimant and defendant at the same time, though the claimant would be still be able to object to the report on the grounds of factual inaccuracy.
Question 2. If not, how would you address the problems listed at para. 35–39 above?
Answer
Not relevant in view of our answer above.
Question 3: Which model should be used for the independent medical panels—Accreditation, national call-off contract, or some other variant?
Answer
We do not fully understand the concept of national call-off contract. However, we see merit in providers of medico legal reports, whether agencies or individual doctors, contracting with a central body overseen by a cross medical and legal profession, judiciary, insurance and consumer body who are accountable to the Ministry of Justice or Civil Justice Council. Effort will be required in setting up such an arrangement in terms of criteria, contracts and accreditation, but once in place should be resource light. A database could be established so that the post code of the claimant is entered and, on a rota basis, the doctor to be instructed is identified. Such a database could be automated so that instructions are sent automatically and at the same time the defendant notified so that it can submit its repair documents and version of events so that in effect it becomes a joint instruction.
Any doctor appointed to the database or call-off contract, whether directly or via an agency, should be accredited or otherwise evidence their ability to work to prescribed standards including standards in respect of examination, review of medical records, reporting and independence.
A set fee should be charged at a level no more than the current Medical Reporting Organisation (MRO) Agreement fee of £200 (or £250 when a review of medical notes is undertaken), plus any costs associated with obtaining medical notes. As the MRO rate includes an element of commission or referral fee payable to the claimant solicitor, the current MRO rate should be sufficient to remunerate the doctor, pay the admin fee and profit of any agency involved in the contract and allow for the costs associated with the administration of the contract and database. In other words, the referral fee payable to the solicitor is replaced by the administrative costs of associated with the call-off arrangement. The fee set should also be incorporated by Rule or annex to the Civil Procedure Rules so that variations to the fee are open to challenge through the courts. An enhanced fee within the maximum figure above might be possible for any doctor joining direct. Although this might increase the work required in administering the scheme it may also enhance the quality of examination and reporting.
We have already voiced concerns as to the independence of some medical agencies and the requirements they place on panel doctors to produce reports with a certain prognosis. Therefore, no matter now robust, we would be most reluctant to see an accreditation system in isolation. We believe that it runs the risk of perpetuating much of the mischief prevalent in the current process.
Question 4: Do you consider that an element of peer review should be built into every assessment, or only for sample assessments for audit process?
Answer
Although we believe that General Practitioners preparing reports in low value motor claims need guidance and support on how to adopt a more forensic and critical approach, we do not believe that peer review on every case is be warranted. The reports are prepared by qualified medical practitioners and as such peer review in every case should not be required. However, we do agree that an independent audit process with appropriate governance is required and, for any doctor failing an audit, consideration should be given to removal from the call-off contract. Such decisions should be taken by the call-off contract governing body. Reporting doctors also need to more aware that their duty is to the court and that their reports and professional opinion will be open to scrutiny and that poor professional judgment may give rise to sanction and a claim for professional negligence.
Question 5: How should costs be dealt with and apportioned?
Answer
In answering this question the increasing costs of medical reports and attempts to control them leading up to Woolard v Fowler (2006) need to be appreciated. Woolard v Fowler led to the setting up of the MRO Agreement. Although we have already stated that the fees for medico legal reports should be no greater than the MRO Agreement fee, it must be borne in mind that those rates allow for the costs and profit of the agency, referral fee paid to the instructing doctor and the credit cost of delayed payment of medical reports which is quite common. The reporting Doctor receives half, or less, of the fee payable to the agency. Examples of the reporting Doctor receiving £50 or £60 are common.
Obviously, at present, the costs of the report are borne by the paying party whether via early payment through the MRO Agreement or at resolution of legal costs and disbursements following settlement of the claim. We assume that costs will continue to follow the cause. To help contain the cost of medical reporting and to help maintain independence we would suggest that the fee for the report is paid at the time of instruction by the party commissioning report. Where liability is not an issue we advocate joint instruction of experts so that the reporting doctor sees the defendant’s version of the accident circumstances as well as that of the claimant. This approach would also help inhibit claimants shopping around for the most favourable report. In these circumstances, the cost of the report could be funded by the defendant.
However, where liability is an issue, the report should be paid for, in advance, by the instructing party, whether claimant or defendant. As such, even where primary liability is an issue, the defendant should be able to obtain medical evidence in order to address causation and quantum issues. Similarly, if a claimant is unrepresented the cost of any medical report should be paid for by the insurer.
5. Part 3—Better Incentives to Challenge Fraudulent or Exaggerated Claims
Question 6: Should the Small Claims track threshold be increased to £5,000 for RTA related whiplash claims, be increased to £5,000 for all RTA PI claims or not changed?
Answer
The Small Claims track should be increased to £5,000 for ALL road traffic accident claims. Although we have reservations that, in isolation, the proposals discussed in this consultation will solve the whiplash problem; to do other than implement an increase applied to all RTA claims will create future problems.
It is generally accepted that the majority of motor claims, particularly those with a value below £5,000 are whiplash. Were the increase to apply only to whiplash claims, there is a concern that the “whiplash issue” will start to manifest itself in other areas such as PTSD or shoulder bruising. In other words, the problem will simply manifest itself elsewhere.
If the Government is serious about addressing the continuing rise of personal injury claims following a road traffic accident then an across the board increase in the Small Claims track limit is required.
It is anticipated that the claimant lobby will strongly argue that any increase in the Small Claims track will greatly inhibit access to justice as personal injury claimants will not be able to represent themselves. We do not accept this view. Low value RTA claims will constitute the bulk of work in many solicitors’ personal injury practices. We would argue that what is being complained of is not so much a restriction of access to justice but rather a loss of income stream that will impact on the individual firm’s business model and profitability.
As a society we have become better able to assert our rights as consumers. Indeed, for many years legal fees have not been recoverable in employment matters. Similarly, those pursuing a claim against the Criminal Injuries Compensation authority do so, in the main, without the benefit of a solicitor. We would suggest that these matters are as important, if not more important, than minor injury following a road traffic accident.
If the Small Claims track were to increase to £5,000 for all motor claims, claimants would still be able to obtain legal advice, albeit at their own cost or by damages based agreement.
Although it is likely that an increase in the Small Claims track limit will mean more unrepresented claimants, the ABI already have in place a code of practice for the conduct of insurers dealing with unrepresented personal injury claimants. Further, there are possible reputational issues that help guard against the under settlement of claimants. From AXA’s own experience it is more likely that an unrepresented claimant will receive enhanced compensation as there are no legal costs to pay as well as concerns over adverse publicity if a claimant were to be knowingly undercompensated.
Question 7: Will there be an impact on the RTA Protocol and could this be mitigated?
Answer
An increase in the Small Claims track may mean less claims being submitted by claimant solicitors via the Portal, though it is still possible that solicitors will bring low value claims with the support of a damages based agreement. However, with minimal changes to the RTA Protocol it could be adapted to enable the claims of unrepresented claimants to be managed via the Portal & and RTA Protocol.
Unrepresented claimants should be accommodated so as to be able to submit claims via the Portal or, where the insurer is known already, by telephone direct to the insurer with the insurer entering details onto the Portal and sending to the claimant a copy Claim Notification Form for them to sign and return. The insurer would then manage the claims process in respect of obtaining medical evidence, liaising with the claimant over proof of loss of earnings and other special damages and making an offer.
6. Part 4—Further Action
Question 8: What more should the Government consider doing to reduce the cost of exaggerated and/or fraudulent whiplash claims?
Answer
As mentioned at the outset, our concern is that the proposals discussed in the consultation paper will not fully address the Government’s concerns and meet their objectives. Although the proposals discussed in the consultation paper have to be viewed in conjunction with other civil justice reforms, there remains too much money in the compensation system and many law firms and service providers have modeled their entire businesses on the low value motor personal injury sector.
Although we support the aims of Government and proposals raised in the consultation paper, our concern is that the root cause of the “whiplash issue” will not wholly be addressed.
Other ideas as to how the compensation process in respect of whiplash and other low value road traffic accident claims could be improved so as to reduce the number of such claims are:
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10.
As will be appreciated, these are simply thoughts and ideas and more work would be required to develop them further.
7. Part 5- Impact Assessments
Question 9: Do you agree with the accompanying equality screening? If not, please explain why
Answer
Yes
Question 10: Can you identify ways in which the procedure under the current arrangements impacts on people with protected characteristics? If so please provide evidence of impact
Answer
There will be minors and other protected parties such as those who lack capacity to conduct their own litigation where court approval for any damages ward or settlement will be required. If, notwithstanding any increase in the Small Claims track limit, it is considered that legal costs of protected parties should be recovered, this should only be on a nominal fixed costs basis.
Question 11: Do you consider that the introduction of independent medical panels to assess whiplash injuries will affect people with protected equality characteristics? If so, please give detail
Answer
They will be affected no more than any other claimant.
Question 12: Do you consider that an increase in the small claims limit for Whiplash/RTA personal injury claims from £1,000 to £5,000 will affect people with protected characteristics? If so, please give details.
Answer
They will be affected no more than any other claimant.
APPENDICES
1. The AXA Whiplash report 2013.
2. Extract from NHS Choices website on whiplash
Whiplash is a term used to describe a neck injury caused by a sudden movement of the head forwards, backwards or sideways
It often occurs after a sudden impact such as a road traffic accident. The vigorous movement of the head damages the ligaments and tendons in the neck.
Tendons are tough, fibrous bands that connect muscles to bone. Ligaments are fibrous connective tissues that link two bones together at a joint.
Common symptoms of whiplash include:
neck pain and stiffness;
tenderness over the neck muscles;
reduced and painful neck movements; and
After an accident, the symptoms of whiplash often take a while (6–12 hours) to develop.
The neck pain and stiffness is often worse on the day after the injury and may get worse for several days afterwards.
Read more about the symptoms of whiplash.
Causes of Whiplash
Road accidents are the main cause of whiplash but it can also occur following:
a sudden blow to the head—for example, during contact sports such as boxing or rugby;
a slip or fall where the head is suddenly and violently jolted backwards; and
being struck on the head by a heavy or solid object.
Read more about the causes of whiplash.
Diagnosing Whiplash
Whiplash can usually be diagnosed from a description of your symptoms. Tests and scans are not usually required.
Visit your GP if you have recently had a road accident or a sudden impact to your head and are experiencing pain and stiffness in your neck.
Your GP will ask about your symptoms and details of how the injury happened. They may also examine your neck for signs of muscle spasms, tenderness and assess the range of movement in your neck.
X-rays and scans, such as, computerised tomography (CT) or magnetic resonance imaging (MRI), will usually only be recommended if a fracture or other problem is suspected.
Treating Whiplash
Whiplash is often a self-limiting condition, which means it eventually gets better on its own or after some basic treatment.
If you have whiplash, it is better to move your neck rather than keep it still using a neck brace or collar. Your neck may be painful, but keeping it mobile from an early stage will improve its functionality and speed up your recovery.
Painkillers, such as paracetamol and non-steroidal anti-inflammatory drugs (NSAIDs), such as ibuprofen, can be used to help relieve the pain.
Whiplash that lasts for six months or more is sometimes known as chronic whiplash or late whiplash syndrome.
Your treatment plan should be based on your symptoms. If you have severe pain, your GP can prescribe a stronger painkiller, such as codeine or recommend physiotherapy.
Read more about how whiplash is treated.
Complications
In many cases, whiplash will eventually get better without any lasting damage. However, in a small number of cases, the pain can last for six months or longer (chronic whiplash).
If you experience prolonged pain, you may find it difficult to carry out daily activities and enjoy your leisure time. It may also cause problems at work and could lead to anxiety and depression.
Visit your GP if you have chronic neck pain that is causing problems with work and carrying out normal, everyday activities.
1 The AXA Whiplash Report 2013
2 http://www.nhs.uk/Conditions/Whiplash/Pages/Introduction.aspx