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Cyclists to be hit by Government 'whiplash' reforms

Andrew Bradley, head of the cycling team in Leigh Day's Manchester office, discusses the nasty surprise for injured cyclists in George Osborne's latest spending review

Andrew joined Leigh Day in 2014 as head of the firm's newly-opened Manchester office. Andrew leads the team handling personal injury claims on behalf of claimants, in particular those injured whilst cycling or involved in other sporting activities.
Laura was cycling past parked cars in north London one evening when the driver of one of the cars opened his door directly in front of her. It was too late for her to take evasive action so she collided with the door and was thrown from her bike, landing on her shoulder and hitting her head.

Following the accident she suffered headaches for several months and was diagnosed with Post Concussion Syndrome.

She also suffered with pain in her back, arm, shoulder and legs. She required physiotherapy, had to take a month off work and was particularly frustrated by the impact the accident had on her ability to enjoy cycling.

Laura instructed Leigh Day to assist with her claim for damages against the car driver.

There were no witnesses to the accident and the car driver made the dubious claim that he had not opened the door and that Laura – an experienced cyclist - had simply cycled into his wing mirror.

As a result the insurer was initially only willing to offer a 50/50 settlement. However, confident that Laura would succeed with her claim, we threatened to commence court proceedings against the car driver and eventually the insurer agreed to settle the claim in full.

Laura’s story is typical of many of the hundreds of claims we deal with on behalf of injured cyclists every year. However, as a result of plans announced by George Osborne in his Autumn Spending Review this week, many cyclists like Laura could be denied access to legal assistance in the future.

The Chancellor has announced his intention to raise the small claims limit for personal injury claims from £1,000 to £5,000, apparently in an attempt to clamp down on the “compensation culture around minor motor-accident injuries”. It is claimed that this will in turn lead to reduced motor premiums for everyone.

Leaving aside the issue as to whether a “compensation culture” in fact exists and whether insurers will in reality pass on any savings to consumers – both assertions that are very much open to debate – the proposed changes will have a far wider impact than simply reducing the number of so-called “whiplash” claims.

The small claims process is designed for parties to resolve disputes without the need for lawyers.

As a result, the legal costs recoverable from a losing opponent in small claims matters are negligible. Most personal injury claims, save for very minor injuries, will attract awards in excess of £1,000 and therefore currently fall outside the small claims process.

This enables those injured to obtain appropriate legal advice. In a typical claim, solicitors will not only assist with obtaining compensation for the injuries sustained, but will also help to organise rehabilitation and look to secure swift payment for damaged property, in particular ensuring our clients are able to repair or replace their bike as quickly as possible.

However, under the government’s new proposals, injury claims of up to £5,000 would also fall within the small claims process. As a result solicitors would not be paid by the losing party for any work carried out on the claim.

This leaves the injured party with the option of pursuing a claim themselves against an insurer intent on disputing even the most straightforward claim, or instructing a solicitor who will have to deduct a substantial chunk of any damages recovered to cover their fees.

A wide range of injuries fall within the £1,000 – 5,000 bracket, and the proposed changes would impact on far more than the whiplash claims that are supposedly the target of this policy.

Laura’s injuries lasted for around year and had a substantial impact on her life during that time, but attracted an award of less than £5,000 and would therefore be classified as a small claim under the government’s proposals.

The range of injuries that could potentially be classified as small claims is startling, and includes cases where the impact on the individual involved is anything but small. By way of example, all the injuries on the list below could become small claims depending on their severity:
  • neck, back and shoulder injuries with symptoms persisting for up to 2 years;
  • fractured clavicle, elbow or wrist;
  • fractured ankle or foot;
  • collapsed lung;
  • hernia;
  • fractures to the nose or cheekbone;
  • facial scarring;
  • loss of teeth;
  • Post Traumatic Stress Disorder.

To use an example we come across regularly, many cyclists will be aware of how painful a fractured clavicle can be, and the extent to which it can impact on the ability to enjoy cycling and many other aspects of day-to-day life.

To suggest that someone with an injury of this nature should lose the entitlement to legal support because insurers feel that they are facing too many whiplash claims seems grossly unfair.

In reality the proposed changes will cost genuine claimants hundreds or thousands of pounds, whilst the increase in share price of most major insurers following the announcement gives a strong hint as to the real beneficiaries of this change.

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