Forcing victims to use small claims court will "cripple" access to justice

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Forcing victims to use small claims court will "cripple" access to justice

12th December 2012

New plans to force an increasing number of personal injury victims to use the small claims court could cripple access to justice for vulnerable people, according to Karl Tonks, president of the Association of Personal Injury Lawyers.

Karl, who is a partner with Fentons Solicitors LLP, was speaking after the Government announced proposals to raise the value of whiplash or general road traffic claims to be heard in the small claims court from £1,000 to £5,000.

“The small claims court is designed for people to represent themselves, which may well work in disputes about faulty goods and services, but it won’t help the hundreds of thousands of people who have serious and genuine injuries following road accidents,” said Karl.

The proposals were made as part of the Ministry of Justice’s consultation Reducing the Number and Costs of Whiplash Claims. But Karl said such a move would leave uninformed and vulnerable people at the mercy of defendants and insurance companies who know exactly how to exploit injured people by settling cases for less than they are worth.

“On top of that, even to begin to make a claim, an injured claimant needs to be able to put a value on the nature of their injuries, but independent research* has found that - in the case of a whiplash or soft tissue injury, for example – as many as 70 per cent of people would not know how much to claim,” he said.

“Defendants and their insurance companies, on the other hand, will know exactly how much a claim is worth and it is the duty of insurance companies to look after their shareholders, not injured people.”

Karl said that getting fair and just compensation will become an even greater uphill battle, with many people simply being put off from even trying.

“The Government has been persuaded by the insurance industry that these proposals will deal with what is perceived to be a problem with whiplash cases,” he said. “But this move will instead hit completely the wrong target.

“Its own figures show that whiplash claims fell by around 24,000 last year. Independent research has found that only one in a hundred people had a whiplash injury in the past year, and of those who have ever had a whiplash injury, almost 40 per cent have never claimed compensation for it.”

Karl said one injury victim, 71-year-old Ann Cooper, was one example of the 20 per cent of whiplash sufferers whose symptoms have lasted more than a year and whose life has been severely disrupted as a result.

Mrs Cooper’s car was hit at low speed by a 4x4 near her home in Worcestershire, last spring. Shesuffered more than 12 months of neck and lower back pain and restricted mobility, as well as nine months of psychological symptoms in the form of fear of travel and gastrointestinal disorders (IBS) from stress. She calls whiplash ‘the silent injury’.

Mrs Cooper had previously led an active lifestyle in her retirement, regularly swimming 40 lengths of her local pool, as well as hill-walking and practising yoga. “A person who has internal, unseen injuries could suffer more than someone with something as obvious as a broken leg,” she said. “Just because it can’t be seen doesn’t make it any less painful.

“I’ve always been active and an independent woman,” she said. “But all of a sudden I was reduced to this wreck.” Mrs Cooper is still receiving physiotherapy for her injuries.

Karl said that people like Mrs Cooper were not the problem, yet she is a perfect example of the kind of vulnerable person who could be forced into the small claims court under the Government’s new proposals.

“The people who suffer these injuries are genuine,” he said. “Honest claimants are not the problem – the problem is fraud, and fraud must be tackled by all sides working together if we are going to eliminate it.

“But this proposal will do nothing to stop that. That is why APIL has developed a ten point plan for tackling fraud which addresses some of the real problems in the system, without undermining the right of people with genuine injuries to claim the compensation they need.”

*Independent survey of 4,000 people conducted by Canadean Consumer research, via its online omnibus panel between June and August 2012

Read more at: APIL, BBC News, Sky News