There is
mixed news today for victims of motor accidents and their advisers, in the
fourth report of the transport select committee on the cost of motor insurance.
It is
disturbing that the committee express concern that lawyers are commissioning unnecessary
medical reports to maximise their own income. This refers in particular to the
obtaining of psychiatric evidence. It is not surprising that the Association of
British Insurers has weighed in and alleged that unqualified individuals are
assessing psychological injury. If any lawyers are sending clients to
unqualified experts then they deserve all they get. But it is hard to envisage
any circumstance in which this would be worthwhile. Insurers and/or the courts
would be quick to reject any such unreliable evidence.
I suspect
that this is a tactic by the ABI to try and get any psychiatric evidence barred in whiplash cases.
Solicitors
actually have no choice here. The Solicitors’ Code of Practice has 10 Core
Principles one of which is to act in the best interests of each client. If a
client describes symptoms consistent with a psychological injury then the solicitor
has a professional duty to investigate. If a solicitor fails to do that and it
later turns out that there is such injury then they are likely to be sued by
their client and possibly disciplined. This is not a matter that can be dictated
by the ABI.
The
committee has suggested extending the idea of accredited panels of experts
beyond whiplash. Apart from very minor injuries it is hard to see how this can
work. In the case of serious or complex injury there can be a range of opinion with
wide disagreement between experts. It is hard to see either side in such cases wanting
to commit to a single opinion. It is the job of the court to weigh the evidence
in those cases. This is something which courts in this country have done for
centuries.
The
committee supports the proposed ban on solicitors owning medical agencies and
from offering inducements to their clients. I think the first is inevitable and
the MOJ seem committed to this. As far as inducements go I am far from
convinced that they encourage dishonest claims. If a criminal is of a mind to
cheat a few thousand pounds from the system, the inducement is the money not
the iPad. But if it helps restore credibility for victims then a ban may not be
a bad thing.
The committee's criticism
of the insurance industry focuses on their continued practice of making offers without medical
evidence. They call for these to be banned. I would suggest that this goes to
the core of the problem. The likelihood of getting a settlement with no
scrutiny by way of evidence, presents a huge temptation to fraudsters.
Anyone
involved in these cases has to be committed to eliminating fraudulent claims. They
add to the cost of insurance and undermine the credibility of the overwhelming
majority of genuine victims. These proposals are an interesting contribution to
that process.
But there
are still concerns that there is a presumption that there is a compensation
culture and also that most claims are not genuine.
The other
concern is that lawyers are accused of being in it to make money for
themselves. At a time when record numbers of firms are closing or quitting this
area of work that is a fantasy.
The full
report is available here –
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