Increasingly in the news there is a focus on those individuals who pursue fraudulent personal injury claims, normally following a car accident. Most personal injury lawyers will at some stage encounter negative comments regarding the individuals that they represent. The approach of the UK government to the issue in England and Wales has been to restrict the right of individuals to claim for minor soft tissue (whiplash) injuries. It is hoped that this will restrict the number of fraudulent claims being pursued but more worryingly it will make it more difficult for the many innocent victims of car accidents to seek justice against the responsible driver.
While it cannot be disputed that from time to time insurers will have to defend claims of a fraudulent nature this is most certainly not the norm and what should not be forgotten is that there are many safeguards in place to ensure that those few individuals do not obtain the rewards that they seek through their criminal actions.
Some sections of the media would have you believe that in order to obtain compensation from an insurance company all you have to do is ring them up and tell them that you have suffered an injury and this was caused in an accident, liability for which rests with their policyholder. The insurers then simply write a cheque, send it to you and that is the end of the matter. Fortunately, for all concerned within the profession, the reality is far different.
Professional and Ethical Obligations
The first safeguard in place is the conduct of the solicitor that the injured party instructs to represent them. At Jackson Boyd our staff are trained so that they can detect any red flags that may indicate that a new claim may be a fraudulent one. We carry out identification and money laundering checks. We take detailed statements from our client and any witnesses. Thankfully, it is fairly rare to receive a claim where it is clear that compensation is being pursued by fraudulent means. Nevertheless, in the situation where such a claim was received we would immediately cease acting on behalf of that individual and notify the relevant bodies and the police.
Jackson Boyd and all of our solicitors are members of the Law Society of Scotland and have a duty to conduct themselves in both a professional and ethical manner. Our professional obligations are such that we would not contemplate dealing with a case where we were not 100% certain that the client’s personal injury claim was a genuine one.
Investigations by the Insurers
The next stage for any individual pursuing a claim in Scotland would be for their solicitors to intimate their personal injury claim on the insurers of the responsible third-party driver. On receiving that claim, and as mentioned above, the insurers will not simply lie down and admit liability. If there is any suggestion of fraudulent activity the insurers will fully investigate the claim by taking statements from their policyholder, any passengers, any independent witnesses and even from the police officers who may attended the accident scene. They may also visit the accident location and inspect the damage sustained to both of the vehicles. If, after conducting these investigations, the third-party insurers are not satisfied that the claim is genuine they can simply refuse to deal with the claim and it would then be left for that individual and their solicitors to decide whether or not to take the matter further.
In the vast majority of personal injury claims a medical report will be required from a medical expert. The expert will examine the injured party, consider the medical records and then prepare a report detailing the accident circumstances, the injuries sustained by the individual and whether they were caused by the accident. The medical expert will be independent and their duty is to the court and not to either of the parties involved in the dispute. Again, like solicitors, the medical experts will have ethical obligations and therefore if they do not consider that the injuries were accident related, or detected any indication of exaggeration or even fraud, then they would refer to that within the report and alert the solicitors accordingly. At that point the solicitor would advise the client that the case could not be progressed further.
If the medical report instructed on behalf of the individual’s personal injury claim was supportive of his injuries having been caused by the accident, the third party insurers are not required to simply accept this. They can instruct a second opinion from a medical expert of their choosing. Even, if they were then to receive their own medical report supporting the injured party’s position there is still no obligation on them to make any offer and indeed the likelihood is that they would still maintain that this is an exaggerated or fraudulent claim.
If the solicitor acting for the injured party considered that this was a genuine claim and this was supported by the investigations that had been undertaken and indeed by the report from the medical expert then the next stage would be for the individual to raise court proceedings. This is yet another safeguard in preventing fraud. A Judge or Sheriff, who would be entirely independent, would hear evidence regarding the accident circumstances from the drivers involved and possibly from other witnesses including passengers and police officers. The solicitor appointed by the insurers would have the opportunity of cross examining the individual making the claim, to challenge their credibility and the reliability of their evidence. The court would also hear evidence from the medical experts regarding whether the individual was indeed injured and if so whether it was in any way related to the accident. The sheriff would then issue a judgement confirming whether or not they consider that the injured party was actually involved in an accident and if so whether he sustained injuries as a consequence of that accident.
Is it Easy?
To answer the question posed in the title of the article, NO, it is far from easy to pursue a fraudulent personal injury claim. There are many opportunities for the third-party insurers to investigate the claim in order to detect the fraudulent activity. There are also many barriers to be overcome before such an individual will receive a penny by way of compensation. Indeed many of the individuals who will be “named and shamed” in the media will often have been rumbled during the investigation period which highlights that these safeguards are effective.
At Jackson Boyd we support attempts to eradicate fraudulent claims but not to the detriment of those individuals who wish to pursue genuine personal injury claims for accidents that that have had a significant impact on their lives and on the lives of their family. Within the Scottish system the safeguards are already there to weed out fraudulent claims and insurers and their solicitors will (quite correctly) continue to challenge any cases which they consider may be fraudulent in nature. Conversely Jackson Boyd will continue to vigorously pursue personal injury claims on behalf of all our genuine clients.
At Jackson Boyd we are committed to acting on behalf of clients with a genuine personal injury claim and will recover the compensation that they deserve for the losses that they have suffered. If you have been involved in an accident that was not your fault or fell ill while on holiday then please get in touch with us on 0333 414 5485 or by clicking here and we will be happy to provide guidance on the prospects of pursuing a successful personal injury claim on your behalf.