All aboard the party bus? Avoiding fraudulent whiplash claims.

rtaWhat could be better than an entire bus load of mates out for a night on the tiles? A group of revellers in Crewe found it to be a potential windfall of thousands of pounds when a Ford Fiesta clipped their bus whilst on a roundabout, at a speed of less than 10 mph.

Despite many on the bus being unaware of the collision at the time of the accident, the very small cost for repairing the vehicles (a £70 bill for the bus and the cost of a small tear in the Fiesta’s bumper evidencing the minor nature of the collision) and no-one requiring any medical treatment that evening, every single one of the 46 passengers on the bus claimed that they had sustained a whiplash injury.

As a result, the Fiesta’s insurer’s Aviva faced a £250,000 claim for compensation. Given the very minimal nature of the collision, Aviva denied liability; claiming the bus passengers’ injuries were inconsistent with the damage to the vehicles. Initially the party bus occupants were undeterred in their quest for compensation and 23 of them hired lawyers to pursue their claims. However, Aviva stood firm and eventually every claim was discontinued.

The accident occurred back in September 2012 but Aviva have been unable to publicise the case before now as they needed to ensure the limitation period has expired for all 46 claimants. The media is hailing the case as a victory for insurers and motorists in general (who end up funding the estimated £2bn a year which is paid out for whiplash claims). However, as is often the case when you look behind the headlines, for every fraudulent claimant on the party bus there are other genuine claimants who need to recoup lost earnings and compensation for the pain and suffering they incur as a result of an RTA. Getting the balance between these two competing parties is never going to be simple.

Whiplash reforms & reducing fraudulent claims

We are yet to know the scale of further reforms which will be implemented as a result of George Osborne’s budget announcement in relation to whiplash claims. The latest information from the MOJ indicates that the whiplash reforms (no compensation for minor soft-tissue injuries) are looking likely to be implemented in 2017 but there is no decision yet on what the small claims limit in PI will be raised to.

The vast majority of PI practitioners on both the claimant and defendant side want to see an end to fraudulent whiplash claims. They give the whole PI industry a bad name and put lawyers at costs risks when they take on claims on a CFA which they think are legitimate but subsequently turn out to be fraudulent.

The quandary for insurers is that it is often far more expensive to fight a suspected fraudulent claim than just to pay out a few thousand pounds in compensation. Aviva’s decision to fight the party bus claims was made much easier because the potential combined value of the claims justified the time and expense which would be incurred investigating them. However, over recent years there has been a significant increase in the number of claims being defended on the grounds of fraud. A good example is the recent case of Akhtar v Ball  [2015] Lexis Citation 292 where RSA alleged the claimants were being fraudulently dishonest in claiming whiplash for an RTA (it was alleged that one of the claimants wasn’t even in the car at the time of the collision). RSA succeeded in proving that the case was fundamentally dishonest and obtained payment of exemplary damages from the claimants.

So whilst the party bus passengers grab the headlines with their attempts to cash in; behind the scenes there is a daily balancing act. Insurers have to assess dubious whiplash claims and decide whether there is enough evidence to allege fraud; always bearing in mind the evidential and costs implications of this decision.

How to assess when a client is presenting a situation which could give rise to a fraudulent claim

Spending some time giving consideration to the following factors may help lawyers advising a client on a whiplash claim:

  • The respective weight of both vehicles involved - If a heavier vehicle collides with a lighter vehicle, a larger impact occurs than if both vehicles are of a similar weight
  • Age and design of the vehicle - Some vehicles have better shock absorbing features, such as large bumpers
  • Location of impact - A direct impact squarely behind the first vehicle will transmit more energy than if the vehicles collide at an angle
  • Presence of a tow bar - A tow bar will transfer energy from the impact through the car and increase the risk of injury
  • Hand brake applied -If a hand brake is applied, it will reduce the risk of injury
  • Claimant's age and sex - Females are at greater risk of whiplash injury and the older the claimant is, the greater the risk
  • A pre-existing medical condition -Increases vulnerability to whiplash injury
  • Whether claimant anticipated the impact and braced themselves - Bracing reduces the risk of injury to the neck
  • Whether the claimant was looking straight ahead at the time of impact - There is a greater risk of injury if the claimant was not looking straight ahead
  • Headrests - If positioned correctly in the car, will reduce the risk of injury

Further information

To see practical guidance on dealing with fraudulent claims and an overview of recent court decisions in this area, LexisPSL Personal Injury subscribers see the following Practice Notes. Click here for a free trial to access.

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