UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 117-i

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

Transport Committee

Cost of motor insurance: whiplash

Monday 20 May 2013

Christian Worsfold, Dr Donal McNALLY, Dr Amanda Roshier and Andrew Miller

David Brown and David Powell

Dr Simon Margolis and Dr Andre Brittain-Dissont

Evidence heard in Public Questions 1 - 144

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Oral Evidence

Taken before the Transport Committee

on Monday 20 May 2013

Members present:

Mrs Louise Ellman (Chair)

Sarah Champion

Kwasi Kwarteng

Karen Lumley

Adrian Sanders

Graham Stringer

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Examination of Witnesses

Witnesses: Christian Worsfold, Chartered Society of Physiotherapy, Dr Donal McNally, Associate Professor and Reader in Bioengineering and Head of the Bioengineering Research Group, University of Nottingham, Dr Amanda Roshier, Lecturer in Anatomy and Behaviour, School of Veterinary Medicine and Science, University of Nottingham, and Andrew Miller, Director of Research, Thatcham Research, gave evidence.

Q1 Chair: Good afternoon and welcome to the Transport Select Committee. Could you give your name and the organisation that you represent?

Andrew Miller: Andrew Miller, Thatcham.

Dr Roshier: Dr Amanda Roshier, University of Nottingham.

Dr McNally: Donal McNally, University of Nottingham.

Christian Worsfold: Christian Worsfold, Chartered Society of Physiotherapy.

Q2 Chair: Mr Worsfold, could you tell us what a whiplash injury is?

Christian Worsfold: Whiplash injury basically describes a mechanism of injury. That is the simplest way of explaining it. You are talking about the transfer of energy to the head and the neck. It can occur in different situations, not just in a motor vehicle accident. It could be a sporting accident or a skiing injury, for example.

People obviously have different definitions, but the way I think of it is that the whiplash injury is the mechanism by which it happens, and the resulting problem or injury is a neck strain or a neck sprain.

Q3 Chair: How long does a whiplash injury last?

Christian Worsfold: The longest period that people have been followed up that I am aware of in the literature is for four years. Around 10% of people will be suffering levels of pain and disability at four years. At two to three years it is around 20%, and at around one year it is about 50% of people who would be suffering with pain and disability.

Q4 Chair: Are there many people who have never recovered from a whiplash injury? Is that something very unusual?

Christian Worsfold: The work I reference is Charles Galasko’s work, who did work for the Department for Transport. The phrase he used was "a significant minority" will have a permanent problem. It is around 10% of people who will have a permanent problem over four years.

Q5 Chair: Does anybody else want to comment on that-to disagree or to put another perspective on what a whiplash injury is and how long it can last?

Dr McNally: It is possibly fair to say that there is not a single whiplash injury, if you like. In the acute phase, as Mr Worsfold said, it is very like a sprained ankle. You are looking at muscle and soft tissue tears and strains. As it progresses to a more chronic phase, then there are other, different symptoms.

Q6 Chair: How long does it take for a whiplash injury to develop? How long would it take to show?

Dr McNally: In the acute phase, from the moment you twist an ankle it starts to hurt, but it may take 24 to 72 hours for the full swelling, bruising and so on to come up. Where you start getting the chronic symptoms, then that is a progression that takes somewhat longer.

Christian Worsfold: I would agree with that.

Q7 Chair: Should there be some limitation put into the system? If somebody did not report a whiplash injury within, let us say, a week, should they then be disbarred from being considered? Should there be any limit like that?

Christian Worsfold: There is no justification I can find in modern medicine for an injury that occurs and then you don’t feel symptoms for a week or two. There is no theoretical basis for that. You would expect the time scale that Dr McNally described. The onset of symptoms would be within 24 to 48 hours. I would say it is 72 hours at the outside.

Q8 Chair: Would you say that, if somebody did not report a whiplash injury within that time scale, they should be regarded as less credible?

Christian Worsfold: It depends how we are defining "report a whiplash injury". If you mean complaining of pain, disability and symptoms, yes, I would agree with that.

Dr McNally: But it is quite possible that someone might have a stiff, sore neck and not think to involve medical practitioners at that stage. If there was a public awareness that that was the time scale that they needed to report pain, then that would be different. Does that make sense?

Q9 Chair: I am just asking for your view on it. Mr Miller, is it possible to have a whiplash injury at a low speed? Is there any speed below which you would say that somebody could not get whiplash?

Andrew Miller: The studies that have been done internationally looking at correlating actual recordings of crashes-so that we understand the accelerations and energy in the crash-with the actual claims show that, below very low speeds and accelerations, the likelihood is really small that someone could be injured who is reporting an injury in the way we have described so far in this discussion.

Q10 Chair: Would you name a speed as a minimum speed from which someone could receive a whiplash injury?

Andrew Miller: The system that was adopted in Germany for a period of time was around 10 kph, which is just over 6 mph. That correlated with research that had been done to understand the correlation between injury, potential for claiming and reported pain.

Q11 Chair: Do you think that is a valid system?

Andrew Miller: It appeared to be and appears to work in that particular country.

Q12 Chair: Do you think that is something that could be used here? Would it be fair?

Andrew Miller: In a system where the injured person is being addressed and examined for the validity of their claim, if we are trying to understand that, then it would be appropriate to use a threshold-a signifier-of where further evidence or further analysis should be done. In that case, as there was a very low likelihood of injury, is there a predisposition to injury or something like that? Bear in mind that we are coming at it from an engineering perspective; we are not medics. We are looking at how vehicle seat engineering has been moved forward based on the reported aspects of claims.

Q13 Chair: You have done some work, have you not, looking at the probability of injury from a device that you have developed?

Andrew Miller: Yes.

Q14 Chair: Is that to do with probability or can it relate to an individual?

Andrew Miller: That is linked to probability.

Q15 Chair: Is that why you don’t think it has been used very much?

Andrew Miller: I think it is one of the reasons why it has not been moved forward by the insurance industry. The current scenario is looking very much at the individual rather than establishing a way of producing discrimination of particular claims, which would then be analysed further. For instance, we suggested that, below this speed or a similar speed, if somebody made a claim, where it had been shown through assessing the damage on the vehicles or an accident recorder in the vehicle that there was very low energy in the crash, then it would be appropriate to ask that person further questions, such as whether they had a previous medical history of injury or some other aspects that perhaps my colleagues here could comment on.

Q16 Chair: Do any other members of the panel have views on whether there should be a threshold of speed below which you could not accept a whiplash injury had taken place? Does anyone have any different views?

Dr McNally: I do. I am not taking quite that line. It is a very interesting study that Thatcham cited in their evidence. At the time the paper was written, a Swedish insurance company installed 60,000 black box recorders in cars and then waited for people to have accidents and see what happened. It is quite hard to extract the data because of the way they presented it; so I ended up counting spots on their graphs. The 10 kph cut-off would have excluded about 40% of the more serious injuries. About 40% of the more serious injuries happened below a change in speed of 10 kph, and about 30% of the chronic ongoing cases also seemed to happen below that 10 kph. The clinical evidence is maybe not quite as watertight as that.

I have more of an engineering issue in that it is quite difficult to quantify this change of speed. We are talking here about a change of speed of the vehicle in which the person is sitting. This could be them in a stationary vehicle that gets up to 10 kph after the crash. It could be a rear-end shunt on a motorway where the speed change happens by that much.

At very low speeds cars don’t deform very much. Typically, you try and assess the change in speed of a collision by the amount of deformation that has been imposed on the vehicle. Apart from the clinical way of doing it, it is quite a hard measurement to make rigorously. I am sure Mr Miller knows more about that than I do.

Chair: No; you are all here to give your own evidence on your own views and experience.

Q17 Sarah Champion: I was diagnosed with having whiplash. I had a stiff neck and limited mobility for about three weeks. I had physiotherapy, which sorted it out. Whether that was time or physiotherapy, I will give it to the physiotherapy. Dr McNally, you said you would have a stiff neck. What are the actual impacts that whiplash has on daily life? I was very shocked to hear that people can be having chronic problems for up to four years. Could you give us some more detail about what those actual problems are as opposed to a stiff neck?

Dr McNally: Mr Worsfold would be a better person to answer that question.

Christian Worsfold: It can affect all aspects of daily living but especially those activities pertaining to the neck. An outcome measure that is used in whiplash research is the neck disability index. What sorts of things are on that? It is things like sleeping, driving and reading. Do some activities give you headaches? All these things would be impaired and you would have difficulty with these kinds of things. Any sustained postures at work might become a problem and build up pain. That would be secondary to the pain limiting the head and neck movement.

With the sub-group of patients that don’t improve, one of the characteristics that appears to be coming out of the literature is that they suffer a post-traumatic stress reaction. This seems to identify a sub-group of patients-maybe this 10% or 20%, who have pain for longer than two or three years-who have widespread sensory changes. They are tender all over their body. They are very sensitive to a cold stimulus and they present with a post-traumatic stress reaction. There is a cluster of clinical signs there that you would expect to find in somebody who is suffering pain that long. That will affect their day-to-day life as well, in the sense that they will have post-traumatic stress reaction so there is psychological impairment there as well. This sensitised nervous system may make them more likely to have other and more widespread aches and pains.

Q18 Sarah Champion: Do you think the current medical assessment is sensitive enough to pick up on all these things?

Christian Worsfold: I am glad you brought that up because I feel quite strongly that the medico-legal assessment of whiplash has just been left in the dark ages and I am not sure why. The emerging evidence base for the last 10 years has been dominated primarily by physiotherapists. The current research base suggests that at about six to eight weeks you can identify who has a post-traumatic stress reaction, whether their pain is related to nerve tissue damage and whether they have this widespread sensory presentation-for instance, whether they are tender around their legs where they have not been injured or they are sensitive to a cold stimulus.

If all those things are measured at six weeks and identified-they are not currently screened; I have never seen a medico-legal report with that contained within it, although the evidence suggests strongly that that should be utilised, not just in a medico-legal setting but a clinical setting to identify these patients earlier-it strongly predicts about 60% of the disability at two to three years. You can literally project into the future that this person is at high risk of chronic pain. There are reasons for that. There are a number of hypotheses as to why they present in that way, but that is the current state of the thinking at the moment from a clinical perspective.

Q19 Sarah Champion: I am just thinking that a number of claims may well be settled at six to eight weeks. Would you think that some of these are being missed, basically?

Christian Worsfold: I tend to concentrate my own experience as an expert witness because I only do higher value and more problematic claims than simple whiplash. I use that term very carefully. I often see people who are assessed early on with this standard Ministry of Justice form that goes into very little clinical depth with the claimant. I often see that it has been missed, yes. They are just not being screened adequately enough for the condition.

Q20 Sarah Champion: Dr Roshier, I am interested that there does seem to be a debate among professionals whether whiplash actually exists. Could I have your thoughts on that?

Dr Roshier: My PhD took place between 2002 and 2005. The drive behind doing my study was to find out potential tissues that could be involved in a whiplash injury, because there was no real idea about exactly what a whiplash injury is. I looked specifically at the soft tissue damage. That is the area that I focused on to see if that was something that could be a problem. Typically in a whiplash event, as has been described, the muscles are the first line of defence against such a movement on the neck. The potential for that area to be damaged is what I literally focused on for my work.

Q21 Sarah Champion: What was the outcome of your research?

Dr Roshier: When I looked at people who were reporting to an A and E department with whiplash injuries, it definitely appeared that they had sustained damage to the soft tissues, to the muscles. There was evidence of muscle bleeding and swelling within the tissues, so something was happening at that level.

Q22 Sarah Champion: Apologies for my ignorance, but is that something that is easy to diagnose? Is there a system by which you can identify that?

Dr Roshier: For whiplash injuries, as I say, we did not really know what tissues were involved. We were aware that ultrasound was being used to look at sports injuries. It is well established there and that is the technique that I applied. It is not a technique that is readily used to look at whiplash injuries at all, but it is in the field of sports injuries and musculoskeletal damage.

Q23 Karen Lumley: Why do you think it is that people think that whiplash is some sort of fictional illness?

Dr Roshier: I do not know the reasons behind it. My interest was just to try and contribute to the pool of knowledge and what could potentially contribute to it.

Christian Worsfold: One of the drivers is that, if you see a low-speed rear-end collision and there is no damage to the cars, it is counterintuitive to think that anybody could get injured in that accident. That is part of the problem. Everyone seems to have an opinion on whiplash, whereas most people don’t have an opinion on anterior cruciate tears or the rehabilitation of that. It stems from the link between compensation and this seemingly trivial injury, whereas at those kinds of speeds you can still have huge acceleration of the head and neck. That has been demonstrated consistently since the 1950s at very low speeds of impact with no vehicle damage. I think it has grown out of that kind of environment.

Q24 Mr Sanders: I am a great believer in prevention rather than cure. Given all the research that you have done into what is happening physically to the body from people who have been in accidents, is there some way of designing better seating in motor vehicles or the design of seatbelts? Is there some way of designing out the damage to a human being that is caused from a collision?

Chair: Mr Miller, is that something you can comment on?

Andrew Miller: Yes; perhaps I can answer that question. A lot of work has been done to promote better seat design based on some studies carried out in the late 1990s and into part of this century, looking at how we can correlate potential for injury to best practice. We looked at seats that appeared to cause a lower frequency of injury. On that basis, that was promoted first by the insurance industry and then it was picked up by the NCAP programme-the New Car Assessment Programme-and car safety promotion programmes. There is a regulation being developed over time to promote that as a standard performance requirement for seats. When we look at seats, we are looking at the whole seat, the head restraint and the back of the seat. The key thing is to stop the head moving relative to the body, to absorb as much energy as possible to stop the type of movement that has been described.

The next stage is to stop the accident happening at all, as you may have read from some of the written evidence. We have identified some key technologies that stop accidents happening. These are the so-called automated emergency braking systems. The insurance industry has taken the step to promote that within the group rating system, which is a way of driving consumer and car-maker behaviour to fit these types of systems and to adopt them on to the roads through fiscal incentives.

Q25 Mr Sanders: This is usually caused from a quick stop, isn’t it? If you had some sort of automated system, it would presumably have to kick in before the average human would start to brake.

Andrew Miller: Absolutely. It acts just at that point upon which you, as a driver, would have had to have acted to avoid the crash.

Mr Sanders: That is interesting.

Q26 Chair: Mr Worsfold, in one of your answers to Ms Champion you said that some injuries had been missed on assessment. Could you tell us any more about that and what you meant?

Christian Worsfold: Yes; I can clarify that point. What I was referring to was one of my feelings around whiplash assessment. I lecture around the UK, so I am in touch with hundreds of physios a year. It is commonplace for them to mention that when their patients went off for these assessments they were in there just 10 minutes, they did not take their clothes off, and they were not examined thoroughly. Physios will often remark that these reports are not worth the paper they are written on.

My own personal feeling about that, as someone who specialises in this area, is that it is not an evidence-based assessment. It is not being informed by the current state of the science and publications. My comment related to the fact that, in the standard Ministry of Justice form that a GP or orthopaedic surgeon will complete on seeing someone who is making a claim for whiplash, there is not enough detail or depth in that. When I have been asked to give a second opinion on a case or have seen a case maybe two years down the line where the person has not recovered, there is often an initial report, and because the standard report is not in enough depth there is not enough information to predict that that person would go on and be at high risk of chronic pain. We can do that now but it is not being done. Does that answer your question?

Q27 Chair: Yes; I just wanted to clarify what you were saying. Do you think the proposal for independent medical panels would be an improvement on the present situation?

Christian Worsfold: The system needs a radical overhaul. It needs a revolution for the reasons I have outlined. I do not think the evidence base is getting through to the medico-legal assessment of claimants. From a clinical point of view, people are not getting the treatment they need early enough. That would be my main point, as a touchstone experience for changing the whole system.

Q28 Chair: Are you saying that physiotherapists should be on those panels?

Christian Worsfold: I think there is a very robust argument, yes. We have dominated the research for 10 years. We work at very high levels in the NHS and privately. If you go for an outpatient orthopaedic appointment, you may see a physiotherapist working at an advanced level ordering scans, sending you for blood tests and doing intra-articular injections. We are very conversant in the language of whiplash injury. The tests that our postgraduate specialists perform, which is part of our day-to-day work with all soft tissue injuries, have been shown to have specific utility in predicting outcome in whiplash injury. These are tests for the way muscles work. It becomes reorganised in whiplash injury. There are tests for nerve sensitivity and sensitisation. If we can start to involve physiotherapists more with designing guidelines and getting us involved in the panels, that would be a step in the right direction.

Q29 Chair: Do you think the information those panels obtain should be made available to anybody else, such as defendants and the courts perhaps?

Christian Worsfold: Yes, certainly. I think so, yes.

Q30 Chair: You do not think there should be a problem with who can see that information.

Christian Worsfold: I don’t see any reason why not, no. I am not sure what you are suggesting, but, no, I don’t see any reason at all.

Q31 Mr Sanders: Where do people first report that they have an injury? Is it to A and E or is it to a GP? I can see there would be a problem with somebody going to a GP and then a delay before perhaps they receive appropriate treatment.

Christian Worsfold: It is usually a "wait and see" scenario when you have had a whiplash injury. You will often be given a prescription for some medication and then they will wait for a couple of weeks to see how you do. That is how it is managed in a primary care setting. Some people take it upon themselves to go and have physio. I do not know what the delays are, but the medico-reporting organisation-

Q32 Mr Sanders: Do you know if there is an average delay between reporting a problem and receiving treatment?

Christian Worsfold: I am not aware of one, no. It would vary from case to case, but I am not aware of and I would not personally say there is a problem in that area, no, from my experience as a clinician and physiotherapist.

Q33 Sarah Champion: I have a very specific point. Dr Roshier was talking about ultrasound as a very good technique in her research to identify whiplash. Would you agree with that?

Christian Worsfold: I would agree wholeheartedly, yes. It is astonishing how it has not been studied more. It has huge potential in this area to confirm absolutely that there has been some sort of insult to the body. That is what we are looking for-objective evidence. I would agree with everything Dr Roshier has said.

Q34 Chair: Dr McNally, what are your views on how whiplash is treated? Is there adequate treatment and where is it available?

Dr McNally: That is probably outside my field of expertise. I am from an engineering and injury initiation background rather than clinical treatment.

Q35 Chair: Does anybody want to comment on the adequacy of treatment for whiplash? Mr Worsfold, what are your views?

Christian Worsfold: If we are saying that 10% to 20% go on and have chronic problems, we are looking at about 50% of people who will recover in a year and 80% in two to three years. There is obviously a natural process occurring there. In terms of the treatment that occurs at the moment, as physiotherapists, we are seeing people a lot earlier. It is a much better time to see them, advise them and, hopefully, get them on the road to recovery rather than leaving it a longer time. I would be concerned if there were big gaps between them seeing appropriate qualified health professionals and getting advice, but at the moment we are seeing people much earlier. I have been working in this area for nearly two decades. It literally used to be six months or 12 months in some circumstances, but it has changed dramatically in the last five years for the better in terms of treatment and seeing people earlier.

I would reiterate what I said earlier about the assessment process that is taking place from a medico-legal point of view. Perhaps often people are not getting the treatment that they require through the medico-legal reporting. The source of the funding is what the expert recommends. Perhaps it is not being funded because these problems are not being identified and these high-risk individuals are not being identified early on. That is the only proviso I would say for that sub-group who do not improve. For the 80% that do, I think they are getting earlier treatment and, hopefully, getting better quicker because of that.

Q36 Chair: Where is appropriate treatment available? Is it available on the national health service or do people need to have private treatment?

Christian Worsfold: My experience is that it is funded mainly through the medico-legal reporting organisations. It is quite a fragmented market, but, if you are seeing whiplash patients, you will be working in private practice and they will be referred through an intermediary at an agreed price for you to do a set number of sessions. I do know that people on the NHS see whiplash patients though, yes.

Q37 Chair: In your experience, is it something that the private sector provides rather than an NHS provision?

Christian Worsfold: Yes, I would say so. There are no statistics to refute or confirm what I am saying, but that is my experience. When I run my course, I get mostly private practitioners who want to go on a whiplash treatment course. I get some from the NHS but it is much less. That would make me think that private practitioners are the people who want the information.

Q38 Chair: When people are prescribed a course of treatment for whiplash, how common is it for people not to complete the course?

Christian Worsfold: I was very interested in that question because my experience is that it is very rare for people not to complete. Most people will complete a course of treatment. I do not know what statistics the reporting organisations have. I should imagine there are some interesting thoughts about that.

Q39 Chair: The Government’s proposal at the moment is for most whiplash claims to go into the small claims court. In practice, we are told that is what the provision would be. What impact do you think that would have on people’s claims and access to justice?

Christian Worsfold: The Chartered Society of Physiotherapists’ concern about that would be their access to justice, and obviously their access to funded treatment may be affected. That would be the main concern.

Q40 Chair: How many? Would that affect a fringe number of people or a lot of people?

Christian Worsfold: I should imagine it would affect 90% of whiplash claims. I am drawing that figure out of thin air but it would be a majority.

Q41 Chair: You are saying you think that about 90% of whiplash claims would be affected by this.

Christian Worsfold: I think so, yes. I am drawing that figure out of thin air. The legal interface is not my strong point, but as a clinician-that is my get-out clause-

Q42 Chair: I am asking you these questions as a physician, looking at the actual whiplash injury and the impact on the claimant.

Christian Worsfold: The concern would be that they would have to represent themselves in court. Reading the evidence that has been submitted, they may not get as much funding, so they may not be able to afford as much rehabilitation or they may not bother trying to get compensation for their treatment because it may be so difficult. There may be obstacles to that. I don’t think it is straightforward going to the small claims court.

Q43 Graham Stringer: Do you think the small claims court is more difficult to access than other courts?

Christian Worsfold: I am just going on some of the evidence that has been submitted. I am straying outside my area of expertise here. I do not have experience myself of the small claims court. I am just going on some of the evidence that has been submitted and from discussions with people who work in this area.

Q44 Graham Stringer: It is a fundamental objection, though, to what the Government are proposing. I just wondered what evidence you were presenting to show that people would get less justice in a small claims court, apart from the hypothesis that they might.

Christian Worsfold: If I think back, I was referring to a lot of form filling, and perhaps that may produce some obstacles for some people. I could try and locate that if you would like me to, but I do not have access to that sort of reference at the moment.

Q45 Graham Stringer: So you are just guessing really.

Christian Worsfold: No; I am not guessing. I was referring to something that I have read. I have an informed opinion because I work in this area, but this medico-legal interface is not my strong point.

Q46 Chair: Mr Miller, I want to go back to the system that you have developed. How could this be used more effectively?

Andrew Miller: We have suggested that the medical panels will need to create some level of discrimination between claims if they are to reduce the number, if that is their intended purpose. Engineering evidence around the vehicle-around its damage levels and event data recorder information that might be telematically available from the vehicle, depending on its age-could be used to understand the amount of energy that was contained in the crash and that the occupant experienced. Our research has shown that very low-speed crashes introduce very low levels of energy. If we think about real life, a very low-speed crash is a very low-speed crash. While you could have an infinitely stiff crash between two very rigid vehicles, at very low speeds you are going to see very low levels of acceleration. It is just physics.

If we are going to look at a causation process by which we are going to ask medics to just look at reported symptoms and other aspects like psychology or psychosomatic aspects of that, which of course is not our strong area, then you may need other information to understand whether that person is coming at it from a particular perspective. If you are trying to understand about the crash, you need to understand what level of energy they experienced. Our tool looked at risk factors around that to generate a probability of injury.

Q47 Chair: Is what you are doing generally accepted by the medical profession as a reasonable way of assessing injury?

Andrew Miller: We have had a number of conversations. I think it is debatable-their view on it-because they have not been involved in its development.

Q48 Chair: What is debatable? Is what you are doing debatable or their views on it?

Andrew Miller: On the outcomes from it. If we are going to deal with finite probabilities rather than overall probabilities, then obviously there is a finite probability that somebody could be injured, which is the court’s current position when these challenges have come before them.

The real debatable question here is very low-speed crashes. There have been claims where there is absolutely no damage to the vehicles whatsoever or they have not even had a crash at all. Those are the challenges the insurers face and the challenges that we are trying to address in this investigation.

Our suggestion is that the medical panels could be provided with extra information about the type of crash it was and the type of information it was in the crash to be able to bring that level of understanding and assimilation to bear if they are trying to remove some claims from the process.

Q49 Chair: Mr Sanders asked you about the implications of different vehicle design for accidents. What percentage of whiplash accidents do you think could be removed or reduced by having different vehicle design?

Andrew Miller: In other countries where they are tracking claims rates-and assuming we have a causal link between injuries and claims rates, taking that as an assumption-we are seeing best practice seat design on a like-for-like basis among vehicles reducing claims rates by about 40%. You could suggest that it is as effective as that for reducing, on a like-for-like basis, the propensity for injury, taking an average population in the car.

Q50 Chair: Mr Worsfold, I want to go back to your proposal for having physiotherapists as part of any panels. Is there any resistance to that, as far as you are aware, from any other parts of the medical profession?

Christian Worsfold: Not that I am aware of, no. The way I view it is that the medico-legal world, from a physiotherapist’s point of view, is in some kind of time warp. It is very hard to get into working in that area. There is a reluctance. I do not know whether the driver is the lawyers, the medics, the surgeons or the GPs, who are keeping a tight grip on this type of work. I do not know, but we have moved on as physiotherapists and we are working at a very high level now. I am not aware of any. No one has verbalised any resistance, but it is a closed shop if you are a physio. It is very difficult to get your foot in the door.

Q51 Chair: At least from outside the medical area, is there any resistance from lawyers or the claims companies?

Christian Worsfold: I lecture to lawyers a few times a year. They just say, "Why is nobody doing these kinds of reports?" I say I do not know, because I have discussions with GPs and they say, "We need guidelines to do this kind of reporting and to raise the bar." The lawyers may feel, not correctly, that perhaps a medic is more authoritative in this situation than a physiotherapist. I have had that said to me before. We are harking back to a time when doctors prescribed exercises and the physio carried them out. It was a technician kind of role. Boy, we have moved light years away from that now.

Chair: Thank you for coming and answering our questions.

Examination of Witnesses

Witnesses: David Brown, Chair of the Third Party Working Group, Institute and Faculty of Actuaries, and David Powell, Manager, Lloyd’s Market Association, gave evidence.

Q52 Chair: Good afternoon and welcome to the Transport Select Committee. Could you give your name and organisation?

David Powell: I am David Powell from the Lloyd’s Market Association.

David Brown: I am David Brown representing the Institute and Faculty of Actuaries.

Q53 Chair: Mr Brown, is the UK the whiplash capital of the world?

David Brown: It is a slightly difficult question to answer because we do not have a lot of data from other areas of the world. What we do have from some of the research carried out within the actuarial profession is a lot of data in the UK. What we have been able to do is to compare against benchmarks that we have been able to get from the United States, where the data is probably of the highest quality. Our research shows that the levels of whiplash or small bodily injury claiming are at lower levels within the United States than they are within the United Kingdom. Although the US leads the world in terms of matters of liability, in terms of being more litigious and so on, it is highly likely that the UK is, as you put it, the whiplash capital of the world.

Q54 Chair: There are different figures, aren’t there, for different regions?

David Brown: There are; absolutely. The most pertinent would be the overall figure for the whole of the United States compared with the whole of the UK.

Q55 Chair: You have produced a figure that talks about 42% in the north-west of England and 37.5% in the north-east. How are these differences in figures accounted for?

David Brown: If I could refer you to paragraph 6 of the evidence, I am just talking about the national averages. If you look at the percentage of claims involving bodily injury from the UK statistic, that is about 30%. For the US, the equivalent figure is 23%.

Q56 Chair: Yes; I know that. I am asking you how you account for the differences in regional figures, which are pretty stark.

David Brown: They are; absolutely. The lowest in the UK is Scotland. In Scotland, there is a very different legal framework and there are no claims management companies. The area of the country that shows the highest propensity for bodily injury is largely the north-west. Coincidentally, that is the area of the country with the highest levels of claims management companies.

Q57 Chair: You find a correlation with the claims management companies.

David Brown: Absolutely; the two correlate. We do not know from our research-and we cannot strictly say-whether that is chicken or egg in the sense that the existence of the claims management companies has given rise to the claims, or whether there is some common underlying factor. What is certainly the case is that the claims management companies have, of course, facilitated the claiming

Q58 Kwasi Kwarteng: You have mentioned the correlation. Do you have a figure in terms of the correlation?

David Brown: No. Unfortunately, the quality of the data does not allow us to do that. Our geographical data on claims management companies counts the incidents of claims management companies and where they are positioned. We do not have geographical data on their turnover or their economic activities. It is more indicative.

Q59 Chair: Is there any correlation between traffic congestion and claims?

David Brown: As in traffic congestion?

Chair: Traffic congestion.

David Brown: Yes, to the extent first of all that, if you have more accidents, then you are going to have more bodily injury. What we are measuring here, though, is that, given that you have an accident or an insured accident, what is the likelihood that that has bodily injury associated with it? In our work, we have tried to take that out of account. Certainly, more accidents will lead to more whiplash claims and more bodily injury. Indeed, with fewer accidents having taken place year on year, and particularly over the last few years, potentially due to increases in petrol prices and less motoring on the roads, there has been a favourable impact on the numbers of whiplash claims.

Q60 Chair: But, within that, is there a relationship between congestion and reported injuries of this sort-these whiplash-type injuries?

David Brown: We have not been able to establish that.

Chair: You have not looked at that specifically.

David Brown: Certainly, and this is a slightly different question, if you go to rural areas, you will see lower levels of bodily injury claiming than you will in urban areas, but the style of motoring is very different. That is a slightly different question from congestion, I would guess.

Q61 Chair: Mr Powell, I want to ask you about assumed levels of fraud. We have figures of assessments from different insurance companies. There does not seem to be an industry-wide figure. Can you tell us why not and how the assessments are actually made?

David Powell: You are right-there is no industry-wide fraud data on whiplash claims. There is industry-wide data on fraud. The reason why is it is very difficult to get an accurate picture of fraud. Different insurers have different methods of measuring fraud. They have different definitions of what is and isn’t fraud. They all fundamentally face the same problem, which is that it is easy to put a value on the fraud that you detect but not easy to put a value on the fraud you don’t detect. That is a real limitation on measuring how much fraud is going on in terms of whiplash claims.

Q62 Chair: Is there an industry measure of fraud on whiplash claims? I have not seen a figure for the industry.

David Powell: No; there is no single figure such as 12% are whiplash claims, or 20% or 5%.

Q63 Chair: So should we believe the figures that come from the individual insurance companies?

David Powell: My thought on that is yes. There will be variation from one company to the next, depending on how they measure fraud. For example, you might have two claims and suspect they are both fraudulent, but one you can prove is fraudulent because you have good testimony and good evidence that it is fraudulent so you repudiate that claim successfully. If that was for £5,000, you have made a clear saving of £5,000 minus the cost of your investigation. Another case might look very similar but you can’t prove that it is not fraudulent, so you pay it. Some insurers will still attribute that payment of £5,000 as fraudulent; others will say, "We couldn’t disprove it so for us it is not fraud." That is where you get this variation. It comes down to judgment and estimation.

I still believe that the evidence that is produced is strong enough to warrant public policy decision making because fraud is a huge problem. We are talking about trying to nail down exactly how much and it is very difficult because of the reasons I have mentioned, but it is still strongly indicative that this is a real problem.

Q64 Chair: Mr Brown, in the figures that you have given us, you estimate that between 10% and 60% of whiplash claims may be exaggerated, misrepresented or fraudulent. What do you base that on?

David Brown: As Mr Powell was saying, it is very difficult to know what the exact figures are specifically in terms of fraud. What we have done is to come at it from a slightly different angle. First of all, we notice that the rise of whiplash claims has particularly taken place since 2007. One of the key ways, therefore, that we have tried to unpick the problem is to say, "If the world were as it were in 2007 and the only thing that had happened is that we had had normal levels of inflation since then, what would the world look like today?" That is the first way that we have looked at it.

The second way is to pick up on the geographical distinction that we have with Scotland. We have attempted to norm for differences between Scotland and England and Wales in various other ways that have followed through the trends that have been seen in Scotland. If you follow the Scottish model, that would give you the 10% figure. Then we have a range of estimates going up to the 60% for the other approach. Most of our methods would be towards 50%.

Q65 Chair: Mr Powell, do these figures sound plausible to you?

David Powell: Yes.

Q66 Chair: How do you come to that? Is it just an assessment or do you do any work to decide that?

David Powell: The feedback I get from the Lloyd’s syndicates managing these claims is that they suspect that in a lot of cases the claims are exaggerated or fraudulent, but they are not able to prove it. It is quite a low legal threshold for the claimant to meet and it is easy for a claim to be made successfully. It is difficult for the defendant to challenge the cases; so they do get settled, but there is a strong suspicion that a lot of the claims are exaggerated.

Q67 Graham Stringer: Would you give your definition of "fraudulent"? It is an obvious question, but I would be interested to know.

David Powell: It is a good question. There is a statutory definition of fraud based on the Fraud Act 2006, which most insurers use as their basis for fraud. That is a wilful intent to defraud or deceive the insurer. You get into slightly more marginal territory when you get a claim where there was an accident and conceivably there was an injury, but perhaps it has been exaggerated. That comes down to the insurer making a judgment over whether that is fraudulent. If you have a claim for £4,000 and you end up settling it at £2,000 because you feel that that is what it is worth and the claimant accepts that valuation, was that additional £2,000 fraud or was it negotiating? That is a marginal area where you have to use your own judgment. Some insurers would call that fraud.

Q68 Sarah Champion: I was very struck by the figures that the number of motor insurance injury claims is going up year on year but the number of casualties in road accidents is coming down year on year. Could both of you comment on what your thoughts are around those figures?

David Brown: The statistic on the number of casualties comes from police statistics- from police attending accidents. It is not surprising that that should be going down because, indeed, the number of accidents is down. That does seem to make a degree of sense. How I reconcile the increase in the number of bodily injury claims with a decrease in the number of actual injuries is that the difference is that people are claiming where they did not claim before. One can begin to guess at what the reasons might be. One of those reasons could be that it is easier to make claims than it was before. Whether recessionary factors mean that people are just simply more motivated to make claims that they would not have bothered making before, or whether there is some other factor, is probably a matter of conjecture and is quite hard to unpick. It is something to do with the propensity to claim that is giving rise to the difference.

Q69 Sarah Champion: Mr Powell, would you agree with that assessment?

David Powell: Yes, I would. My assessment is that the thing that has changed is the encouragement. There is enormous encouragement for people to claim. There is a claims-manufacturing industry that has developed over the last 10 to 15 years. There has always been a level of it but it has gone into overdrive. There is an industry that exists purely to identify people who have the opportunity to make a claim. They are picked up and pushed through the compensation system so that the professionals around them can earn fees.

Q70 Sarah Champion: What is your solution to stemming this tide?

David Powell: You need a number of steps to tackle the various issues. The legal medical test for demonstrating an injury is pretty weak. It is pretty problematic. It is easily tricked. The fees have been quite high. They have been reduced recently, which I think is very helpful. We need a much more stringent system. We need a more stringent medical test. We need a more stringent legal test for somebody to demonstrate that they were injured and it was somebody else’s fault that proves the causation. If you have a more stringent test that the defendants are more confident in using, then you will get more fraudulent claims challenged and you will get more fraudsters put off.

Q71 Sarah Champion: This inquiry is obviously looking at whiplash injuries, but I am aware that the larger bodily claims are going up at even faster rates. If you manage to stem fraud on whiplash, do you think that is going to ripple through to other injuries? If it worked for one, would it work for all?

David Powell: It certainly won’t hurt. The problem is in the mass low-level claims. It is much harder to exaggerate or fake a very serious injury. Those claims are generally treated as genuine. There is very sound medical evidence for somebody who has a spinal or brain injury.

With whiplash, you are talking about very subjective injuries. In the same accident some people might be injured and some people might not be injured. It is easy to fake the symptoms. You just describe that your neck is injured when you report to your doctor. A report confirming that is usually sufficient to get you home with a claim. There is no real scrutiny of that examination and of that process. It is a very low, easy threshold to get over.

Q72 Kwasi Kwarteng: Do you have any international comparisons? We have heard earlier evidence in which, for example, whiplash is very uncommon in Germany for whatever reason, but claims here are very high. Would you like to comment on that?

David Powell: I think there are cultural factors. As I mentioned in the previous answer, we have a huge industry that exists to find people and push them through the compensation system. That is probably the primary difference for me. The other factor is one of compensation for legal advice and representation. In Germany, I understand the rate is about €300. It is reasonably small beer. A lot of law firms are not interested in picking up those sorts of cases. In this country, until recently, the legal fees were over £1,500 for a low-value whiplash claim. That has been reduced significantly and I think that will have a positive effect. In fact, it is already having a positive effect in terms of reducing premiums. I would say those are the big differences between the British and German experience. I would suggest it is nothing to do with German necks being stronger than British necks.

Q73 Mr Sanders: Coming back to your answer just now about the threshold, what about a threshold for redefining whiplash in some way? It seems to me that there is a very broad spectrum. Even at the bottom there is a broad spectrum. To me, you could easily get a whiplash injury from riding a dodgem car. I wonder how many claims there have been for whiplash from a dodgem car accident. Is there not a physical threshold that could be put into a definition-that something demonstrable has to have occurred for it to be recognised as a whiplash injury?

David Powell: I would wander outside my area of expertise, I am afraid. It is more of a medical issue. My suspicion is that, if you used a specific injury mechanism as the trigger, so if you can demonstrate that you have muscle damage or an ultrasound can find that you have some kind of abnormal physiology, then you would need a different test for everybody. This is the problem. There is a huge distribution of how susceptible people are.

Whiplash claims are so problematic because it is a very subjective injury. In the same accident, one person might report neck pain and the other person might not. It would be a very difficult area to try and pin down a specific diagnostic test to identify whether somebody is genuinely injured or not. If there was, it would be a fantastic way of dealing with these cases, because they are so easy to fake and exaggerate. I do not think there is such a test, but perhaps it is a question for the medics.

Q74 Mr Sanders: But isn’t it a question for the insurance industry themselves? At the end of the day they put in their policies what they will or won’t cover, so they could come up with a definition of whiplash if they wished, could they not?

David Brown: Unfortunately not, because under the terms of the Road Traffic Act it is a third party that has to be covered. It really would be a matter, I would suppose, of separate legislation to exclude liability to third parties under particular circumstances.

David Powell: Perhaps another way of tackling it would be to do with the level of damages. This is where we come on to territory that is easier to grapple with, in my view. The courts define who gets compensation for what and how much. It is not the insurance industry that define that; it is the courts. The insurance industry takes reference from court awards when negotiating settlements. To a certain extent, the insurance industry is neutral on what level of damages is awarded for whiplash claims. If it is a high level of damages and high level of legal costs, you need high premiums to pay for that. If it is low damages and low costs, you get low premiums.

You can have whichever system you like. If you decided to award lower damages and use a system that is lower cost, then you would get lower premiums. If that is the focus of the exercise, then-

Q75 Chair: Are you absolutely sure about that? Do you have a categorical commitment from the insurance industry that they would lower the premiums?

David Brown: In terms of the competitiveness of the market, I do not think that that needs to happen.

Q76 Chair: You don’t think what needs to happen?

David Brown: I am not suggesting you should not get it, but, even absent any commitment from insurers, there is evidence that the market is highly competitive. I can cite evidence on that.

Q77 Chair: But there isn’t a commitment, is there, from the insurance companies that, if this system changed, premiums would actually go down-or is there one?

David Powell: It is my understanding that there is a high level of commitment that savings realised from reforms that are now in the pipeline or have recently gone through will be passed on. It is also my understanding that premiums have gone down between 5% and 10%.

Q78 Chair: But where is the commitment that they would go down as a result of this change?

David Powell: I believe it was made at the prime ministerial summit earlier this year.

Q79 Chair: Is that public information?

David Brown: It is, yes. There was the Valentine’s Day summit.

Q80 Chair: Yes; I have read all kinds of reports about the Valentine’s Day summit. I am asking if a categorical commitment exists from insurance companies that they will reduce their premiums if these proposed changes are made. Does that exist?

David Brown: I can’t answer that.

David Powell: As I understand it, yes, but I wasn’t present. I have heard that said.

Q81 Chair: So you think this was said at a private meeting, of which we don’t have any public record.

David Powell: I believe you are speaking to the Association of British Insurers next month, so perhaps you could ask them.

Q82 Chair: We will be asking them, but, seeing as you made that statement, I wanted to know the basis of it.

David Powell: The basis for my statement, separate from that line of inquiry, was that the intense competition in the market competes away savings. The example I can give you is that it is my understanding that the premiums have gone down by between 5% and 10% over the last 12 months. That is as a result of anticipated savings in respect of reforms that are just coming in now, such as the reduction in fixed legal costs and the changes introduced by the LASPO Act, which have made success fees and ATE premiums non-recoverable. They are technical changes that should reduce insurers’ costs. Those anticipated savings have already driven a reduction in premiums by 5% to 10%.

Q83 Chair: Mr Powell, you also referred to awards being made by the courts. If the proposals that we are now discussing in relation to whiplash actually went through, fewer would be decided by courts and there could be more pressure from insurance companies to persuade claimants to settle for lower amounts than they might otherwise have reached. Isn’t that a factor in this particular debate?

David Powell: If you are talking about lowering the level of damages, for example, that would have to be introduced by a change to the judicial process, and the Judicial Studies Board would have to change the damages brackets for injury types and things like that. It would feed through via the court system-the judicial system.

Q84 Chair: But what about the system where insurance companies can persuade claimants to settle for an amount before those claimants have had any medical advice?

David Powell: I am with you; you are talking about the pre-medical offers. They exist now and they are a symptom of a compensation system that is not working properly for defendants. If the system worked better, was cheaper to operate and applied more stringent legal and medical checks, I think those offers would largely disappear.

Q85 Karen Lumley: I want to move on to the claims management companies. Do you think they are properly regulated?

David Powell: I would like to say no. How I would evidence that I am not sure. The regulation is not very strong. They have to register, but to what extent they are actively managed is an open question. I suspect that they entice potential claimants with the offer of damages but are probably not very forthcoming about the fees they will earn out of the process.

David Brown: I have no particular evidence on it, unfortunately. I guess, if one is trying to identify claims that are proper, that is one of the points of intervention. The extent to which those will continue to exist in their current form in the absence of referral fees of course is another matter. That issue may diminish to an extent.

Q86 Karen Lumley: For example, I had an accident and I had a call from one of these people. How would they know that I had had an accident? Have you any idea? Is it being sold on from the insurance company?

David Brown: You might receive a text. You might receive an e-mail.

Q87 Karen Lumley: But how would they know that I had had an accident? Are my details being sold on?

David Brown: You might receive one even if you hadn’t. I frequently get them myself.

Q88 Chair: Yes, but why do they happen? Where does the information come from so they know who to contact?

David Powell: There is a whole series of people in the chain that could find out and could pass on or sell your information to a claims management firm or a claims solicitor.

Q89 Karen Lumley: Can you just tell me who it is?

David Powell: It could be some medical people attending an accident. It could be in the A and E department. It could be a doctor. It could be an insurance broker. It could be an insurance company, and others.

Q90 Kwasi Kwarteng: Is there any informational data relating to the numbers of claims management firms that have been set up in the last 10 years? There is very clear data about the number of claims that there are and very clear data about the number of casualties, and they are going in completely the opposite direction. I wondered what the data was relating to the number of firms.

David Brown: It comes from the regulator. The data has just been published for the last year. Since 2007, there has been a very strong rise in the number of claims management companies. Going into 2011, there was a 5% reduction, although turnover went up some 20%.

Q91 Kwasi Kwarteng: A "strong rise" is very graphic, but is there a number to that?

David Brown: In terms of the numbers, I don’t have them to hand.

Q92 Kwasi Kwarteng: Is a "strong rise" 15%? Is it double? Is it 20%?

David Brown: In terms of the numbers I believe it is of the order of doubling, but in terms of the turnover it will be more than that.

Q93 Kwasi Kwarteng: It would be more than double.

David Brown: Yes. Going into 2010, I believe there was a 50% increase in turnover. Going into 2011, there was a 20% increase in turnover. We do not yet have the figures for the turnover in 2012, although the number of claims management companies themselves did reduce by 20% in terms of registrations for personal injury and motor.

Q94 Chair: The motor insurance industry claim that they are not profitable, yet they want to be in the business. The Motor Accident Solicitors Society have given information that shows they are highly profitable. How do we reconcile those different pieces of information, Mr Brown?

David Brown: The data that we have comes from the returns to the regulator of the costs of claims and expenses set next to the premiums that are taken in. The data for private motor for the year up to the end of 2011 and accidents arising in that year was that, for every £1 of premium that was taken, there was £1.06 of expenses and claims. The latest data, which has come out from the 2012 returns, has an equivalent figure of £1.05.

There are a number of factors, to begin to answer your question. The first is that there is a range of degrees of profitability in the underwriting results of different companies, so, within that, there will be companies that lose more money and companies that make money. An additional factor, however, is that this is simply talking about underwriting profits. There will be other sources of income. There will be investment returns, for example, although in the current market, with investment returns being low, those are not particularly pronounced. There is income from ancillary products, and then, of course, to the extent that there is referral by insurance companies to claims management companies and solicitors, there is referral income as well. Under the current initiatives that have been launched, that is due to stop.

Q95 Chair: Were the Motor Accident Solicitors Society wrong in the information they give? They have produced figures to say that the companies are profitable.

David Brown: The data of my working party is drawn from the FSA returns. They may be looking at wider data, which includes sources of income other than pure underwriting activity, but I am guessing really.

Q96 Chair: That is not something that you have looked at in your working party?

David Brown: It is not, no. We have restricted ourselves to the data that is in the FSA returns.

Q97 Chair: Mr Powell, your association has called for a public debate on the appropriate level of damages for whiplash. Why a public debate? Shouldn’t this be a judicial assessment about equity?

David Powell: Simply because what we are hearing, following on from the previous inquiry from this Committee, is that people don’t want to pay high premiums for their car insurance, particularly in an environment where the number of accidents is going down. They do not want to enrich middlemen, who make a lot of money out of this system.

One thing that has happened already is that legal costs have been reduced, which is a great way of introducing some savings into the system. The next step, if you want to try and reduce costs that will feed through to premiums, is to look at damages. That is the next obvious place to look. The insurance industry, as I say, is reasonably neutral on this issue and will compete in a high-damages, high-costs, high-premium environment or a low-damages, low-costs, low-premium environment. The industry will compete in any environment that operates, but, if people want low premiums, you have to look at where the cost is in the system and how it can be taken out.

If society wants to look at reducing the level of general damages for whiplash or removing them completely, then those are ways that could be used to get the premium down. I am not saying that should or should not happen; it is a matter for debate. Those are ways that could be used to get the premium down.

Q98 Chair: Where are you saying the problem is? Is the problem in the high level of damages for some people or maybe in the lower level of damages for claims that are not justified? What exactly are you saying there?

David Powell: The cost comes with the volume of these claims. I suspect that most claimants are attracted by the carrot of £2,500 damages, which is roughly the typical award for a low-level, non-serious whiplash claim that resolves reasonably quickly in terms of medical condition. I think that is what attracts people. Certainly, that is what the claims industry use when they are enticing people to make a claim. There is the carrot of some money. If you reduce that, you would reduce the incentive.

Q99 Chair: You also say that what you call "extremely lenient court decisions have prevented insurers from contesting potentially fraudulent claims". How often has that happened and what do you mean by that?

David Powell: Rarely, to be fair.

Chair: Rarely.

David Powell: Yes, rarely. If you look at the total number of whiplash claims settled every year versus the total number of claims litigated, it is a tiny fraction. Less than 1% of whiplash claims will be litigated in any one year, simply because insurers cannot afford to litigate routine whiplash claims with low or weak evidence supporting the claimants. They just cannot afford it; it is not financially viable.

Q100 Chair: But the statement you made is based on something that happens rarely, you say.

David Powell: Because court awards affect the subsequent-

Q101 Chair: There can be reasons for it. I am not disputing that. I just want the factual basis that it is rare that this happens.

David Powell: Yes.

Q102 Chair: You also say in your evidence that some medical reporting organisations have "strong financial links" with claimant solicitors. How many such situations are there?

David Powell: I don’t have specific information on that, but it is a matter of common knowledge in the insurance industry that there are those links and that some claimant firms own their own agencies. Those claimant firms commission huge volumes of these reports and they want to control that process. They might suggest that there is sufficient governance in place that the medical decisions are not interfered with, but the insurance feeling is that it is not a good way of running that system. It just doesn’t feel right.

Q103 Chair: When you say it is commonly known, how would we be able to make some reasonable assessment of how often that happens? It is a very serious statement and it has big implications. It may be commonly known that that is what people say, but how can we find out the actual extent of that?

David Powell: You would perhaps have to ask some of the representative claimant firms to declare how many of their members own a medical agency or have a financial stake in them greater than x%. It may be that some people in the insurance community know of these arrangements and could report them.

Q104 Chair: You have spoken about the interests of claimant solicitors. Even if you cannot quantify that, that has to be a factor in this. The insurance industry itself has very strong interests as well, doesn’t it? How do we make sure that the new plans to put more people in the small claims court are fair and equitable to claimants as well as to insurance companies? What can we do to make sure that happens?

David Powell: You can design a system to protect claimants who are not represented. It needs to be a simple system. It needs to be easy to understand and easy to follow. You need to give the claimants tools to evaluate fairly the offer they are being made so they can see if it makes sense or not. You need to make sure that the insurers are properly regulated so that they are treating their customers fairly. There is existing regulation in place to ensure that happens, but if you wanted to beef it up as a safeguard you could do that.

Q105 Chair: You have made a statement there that sounds very easy. They are actually very serious proposals. We would need to know a bit more how they could be done. You have said in your written statement, "It is our view that in a large proportion of the cases valued <£5,000 there is simply no need for legal advice, as long as the process is simple enough for unrepresented claimants to follow, they are fairly treated by the defendant and they are able to check if the settlement offer made to them is fair and reasonable." Is it realistic that those safeguards can be achieved? Let us say they are fairly treated by the defendant. How would they know that?

David Powell: My suggestion would be twofold. One is that you have a system in the medical assessment where the claimants get categorised so they understand exactly what type of injury they have and how severe it is so they get a good understanding of where they belong in terms of the scale of compensation they are entitled to. Then, to support that, you would have a public tariff of damages. Agreed scales of damages are used in other areas of compensation, whereby if you know that you are claimant type A5 you are entitled to compensation of between £1,800 and £2,500. If the insurance company makes an offer of £2,000, you can decide to accept that or reject it and wait for a better offer.

If you have the tools so that the claimant can understand the offer they are being made, they are able to make an informed judgment. The evidence that that will work is that we already operate this system with first-party claims in the insurance industry. If you are making a claim against your own policy because your car was stolen, for example, you have access to tools that tell you what your vehicle is worth, so that when the insurance offer comes in you can make a judgment about whether that is fair or not. You accept it if it is fair and you don’t accept it if you don’t think so.

Q106 Chair: But the specific situation we are discussing in this inquiry is to do with whiplash, and that is to do with medical situations with implications for health; so it is slightly different. Perhaps the individual is not in as strong a position to make an assessment. How would they be able to tell if what was offered was, in the words you used, "fair and reasonable"?

David Powell: There are two ways. First, they get categorised so that they can understand what type of compensation they are entitled to. The French use a system on this basis where they have a disability index and they make an unequivocal statement about how badly injured the claimant is so that they know exactly where they stand. The second part is that they have a published tariff of damages that they can look at to ensure they are being offered the right amount. The additional factor is regulation on the insurer to make sure that they are handling these claims fairly.

Q107 Chair: What kind of regulation?

David Powell: There is already regulation requiring insurers to treat claimants fairly, to make them fair offers and not to differentiate.

Q108 Chair: Do you think it works?

David Powell: Yes, it does work. The volume of complaints against insurers settling claims is minuscule compared with the number of claims they settle. You could beef that up. You could introduce a specific set of regulations through the insurance regulator to manage this new part of the system.

Q109 Chair: Do you think that a vulnerable individual with little knowledge about medical matters would be in a position to work out if what they were being offered was fair and reasonable, when they did not have access to any legal advice, by the insurer making the offer to them?

David Powell: I understand the concern. There are ways of dealing with it. One is to try and protect them in the system. The other is that there are ways they can get legal advice within the small claims track. I believe the small claims track allows people to recover £250 or £260 for legal advice-not for representation but advice-on whether the offer they are being made is reasonable. There is no reason why that could not occur if that was required.

The other issue is that the small claims track is suitable for very simple cases. If it is not a simple case and if the claimant is vulnerable for any reason-if they are without capacity or if they are a minor-that claim does not belong in a small claims track. If there are complicated liability issues, for example, about who was at fault, those cases do not belong in a small claims track. They could be escalated to the fast track or to the multi track, where they can be dealt with with a bit more scrutiny and time. This is about settling mass claims cheaply to get premiums down.

Q110 Chair: And you guarantee the premiums would come down.

David Powell: Any savings would be competed away. We are already seeing that with changes that are still in the pipeline. Insurers have already brought the premiums down in expectation of savings down the line. It is a gamble, but some insurers have done that and others have had to follow.

Chair: Thank you very much, both of you, for coming and answering our questions.

Examination of Witnesses

Witnesses: Dr Simon Margolis, Chief Executive, Premex Services, and Dr Andre Brittain-Dissont gave evidence.

Q111 Chair: Good afternoon and welcome to the Transport Select Committee. Would you give your name and organisation?

Dr Brittain-Dissont: I am Andre Brittain-Dissont from Andre Brittain-Dissont Medical Reporting, an independent medical expert.

Dr Margolis: I am Simon Margolis. I am chief executive of Premex Group, which is a medical reporting organisation.

Q112 Chair: Could you explain to us what medico-legal reporting normally involves?

Dr Margolis: Ordinarily, it is a process whereby claimants who typically will be represented by a lawyer will be required to have some examination carried out to assess the extent of any injury, with a view to a report being produced that will outline the extent of the injuries and offer a prognosis for recovery. Typically, because of the Civil Procedure Rules, the instruction would come from the claimant’s representative, which would ordinarily be a solicitor.

Q113 Chair: Who actually instructs you? Where does it come from?

Dr Margolis: Ordinarily, because of the Civil Procedure Rules, it allows the claimant’s representatives to request the report. The majority come from the claimant’s representative, although we would also do reports for insurance companies where they are looking after the claimant on occasions. The bulk of them are from the claimant’s representative.

Q114 Chair: Who is paying you?

Dr Margolis: Ultimately we will be paid by the at-fault party. Ordinarily, we would not be instructed unless the claimant’s representative is comfortable that liability is not an issue and that they will therefore be able to recover costs. Typically, we will be paid by the at- fault insurer.

Q115 Chair: Dr Brittain-Dissont, can you tell us any more about that? Do you want to add anything on what you do? Tell us more about who instructs you and who pays you.

Dr Brittain-Dissont: I get instructions from a variety of different people. It can be from the claimant’s solicitors directly or from the defendant’s solicitors. It can be a joint instruction from both or from an organisation like that of Dr Margolis, which is a medico-legal agency. There is a variety of different means whereby an independent expert receives instructions.

Q116 Chair: What is the balance of where you get your work from- what kinds of organisations?

Dr Brittain-Dissont: It is probably about 50:50. It is 50% direct from solicitors and 50% from an agency.

Q117 Chair: Do the people sending work to you get any referral fee or anything of that nature?

Dr Brittain-Dissont: From me, no, they don’t. There is no payment to them for sending the case to me.

Q118 Chair: What happens to the report that you produce?

Dr Brittain-Dissont: The report that I produce goes, first, to whoever sends you the instructions. If it was from a company such as Premex, it would go to them directly. If it was from a claimant’s solicitor or a defendant’s solicitor, it goes direct to those people who instruct you first of all.

Q119 Chair: How do you distinguish between the injury that you are looking at and a pre-existing injury?

Dr Brittain-Dissont: I suppose experience is the best way. There is no absolute scientific mode of doing that. Like all assessments that any doctor performs in any surgery in the world, it is really a question of listening, looking, feeling and examining. You come to a decision at the end if it seems like a reasonable situation. It is very hard to distinguish between purely old and purely new. You listen to the person’s history and that then guides you through the examination as to what you should be examining. Then you come to a conclusion if you think that is reasonable. You may have medical records that can assist you in seeing how they were pre-accident and therefore what complaints they had post-accident. Of course, if somebody comes to you with a condition that was not documented in the records previously, that is an indication that there is a new situation that has arisen since this index event of an accident.

Q120 Chair: Dr Margolis, do you have any other comment on how to distinguish between an injury that you are looking at and a pre-existing injury?

Dr Margolis: No; I would agree. With any medical condition, the history is an absolutely key part of coming to a conclusion on the diagnosis. That is arguably one of the areas, with the current system, that is probably not as good as it could be, in the sense that, as far as these types of injuries are concerned, the expert examining a claimant would typically have the history from the claimant and that is it. This is one of the areas where people are looking at how the system could be improved that would be relevant in the sense that there is only one side of the story. It is quite difficult for a medical expert, when they just have a single account of events, where insurers might say, "That account bears no resemblance to what actually went on," if they do not know the other version of events and is not helpful. Arguably, in terms of a new world, that would be one of the areas that would be very sensible to look at to give experts more information. To some extent, they are currently operating with one arm tied behind their backs.

Chair: I did have the opportunity of visiting Dr Brittain-Dissont’s surgery to see an examination. These are very big questions. They do not relate to any one individual; they relate to the nature of the examinations you do and what you are able to assess.

Q121 Graham Stringer: What percentage of the clients who come to you do you reject-"reject" is probably the wrong word-or do you say, "You have no injury whatsoever"?

Dr Brittain-Dissont: I would estimate that between 1% and 2% involve me reaching a decision that the conclusion for injury is really very unsafe or the assessment has just been so clouded with poor information, poor history and then inappropriate findings on examination whereby you cannot come to a conclusion that there is injury; or, if, worse than that, it just seems to be a nonsense case with signs that seem to be blatantly malingering signs, it is probably in the region of 1% of people that I would see. That would be about correct, I would say.

Dr Margolis: I am not actively involved in assessing people.

Q122 Graham Stringer: No, but your organisation is, is it not? I would imagine you must have some idea in a commercial organisation of how many cases you do not want to take forward because I presume that would affect your eventual income.

Dr Margolis: I am afraid I do not have that information to hand. It will be a very small percentage; I would agree with Dr Brittain-Dissont. Typically, there has been an element of weeding-out of cases prior to us being asked to arrange an examination, so it is going to be a low figure.

Q123 Graham Stringer: How long do the examinations take?

Dr Brittain-Dissont: It depends how many injuries there are, of course. One difficulty here is that we are talking about whiplash, which is a poor term anyway. That is often just the beginning of the story. There may be multiple injuries. It can happen that you have one crash and one injury. Probably the majority involve psychological injury, lower back injuries and other cuts and bruises. Some injuries are more serious than others; some crashes are more serious than others; so you wind up with a multitude of injuries to be dealt with. Sometimes there is major psychological distress and therefore a psychological assessment really prolongs the examination. It can be from 20 minutes to an hour. If someone is a really superb historian, who comes in and you sit back and they give you all the information, then it can be much quicker. If someone is a bit more difficult to interview, then it can take a little bit longer. It is a variation. It can be 20 minutes or it can sometimes be an hour.

Q124 Graham Stringer: In the cases that are rejected, coming back to that word, how do you decide that? Do you find that people are lying or do you examine them and find there is no tissue damage?

Dr Brittain-Dissont: It is a build-up. It begins with the history. Generally, that is where doctors really earn their salt. They ask questions and learn about their patients. If you have ever been for any medical assessment, you will spend much more time talking to your doctor than being touched by your doctor. Generally, it is learning to know about people and by asking the right questions that we learn how we can direct our examination.

Generally, if you are injured and have a significant problem and it is three or four months post-accident, you will have a lot to say about that injury. If I give you an open question like, "How has the injury affected you?", you will fill that time with detail about when it hurts, how it hurts, how it affects you and how it interferes with things. When you ask these questions and there is virtually no information coming back apart from, "Neck pain, doctor", or, "It hurts, doctor, doesn’t it?", and then you go on to the end of the examination and there is withdraw reaction or you touch superficially and people withdraw, you start to build up a picture that this is less safe. Eventually, if you are getting true inappropriate signs and things that should not cause any pain, even in somebody with a significant problem, and they say, "I’m getting pain, doctor," without some significant psychological disorder, it becomes unsafe. Therefore you say, "That’s probably where we should terminate things. I have no reason to assume that you are injured here. There is something else going on but it’s not really a medical issue."

Q125 Graham Stringer: Does it give you any pause for thought, having listened to the estimates of the number of fraudulent claims that there are, that you are only finding there is no medical case in 1% or 2% of the people who are coming to you, whereas the estimated figures for fraudulent claims are much higher than that? Does it give you pause for thought at all?

Dr Brittain-Dissont: It was interesting information. I am not able to verify the actual validity of it. All I know is that one of the reasons why I gave an open offer for anybody from the Committee to come and see a clinic and see what happens-because there is still nothing better than just seeing people coming in-is because I didn’t know who was going to come on that day. Anybody could have come in-good claimant or bad claimant. In general, I am confident that I see genuine people with genuine injuries, which have a genuine impact on their lifestyles. That would be similar for anybody coming to any clinic on any one day. I think the figure of 1% or 2% is, in my experience, more robust, because I see these people face to face. I actually see them and get my hands on them. Through the evidence of my own eyes that is what I would say. Maybe there is some filtering process and some of the worst cases get lost to me, or maybe people who refer me cases are better referrers. There may be better practitioners and worse practitioners in terms of where the work comes from. That is what I see and I am quite confident that that is about the right figure.

Q126 Graham Stringer: When you talk to patients-which is obviously a good thing, because some doctors don’t talk to their patients very much-there is no hard, diagnostic test that is firm and fast for this. How confident are you in the reports that you put out?

Dr Brittain-Dissont: Dr Margolis is a doctor with great experience. He will know that, if you enter medicine hoping that every condition has a test that means you can make the diagnosis, you will be very disappointed very early on in your career. There are a multitude of things we all suffer from whereby there is no pure test for it. You may have no physical signs-for example, epilepsy and migraine. There is a multitude of cases whereby we simply go on what we listen to, what we feel and what we see when we examine you, together with the history. An acute sprain injury fits into that category. Again, with a good history and finding the correct tender points, when you examine somebody, it is important to ask whether those findings are reproducible. If I examine you here at this point, and then we pause for a second and I come back to examine you again, would I find the same things the first time and the second time? It is quite difficult to fake reproduction of the exact tender points once, twice or three times. A good expert would examine you and then, if he had some concern, he would take a break and examine you again. If the tender point, as it is called, migrates around the body, then you start to get more concerned. If somebody comes across as a genuine historian with lots of information and looks like one of your patients you would see every day in your clinic, then you will lean towards that person being a genuine claimant.

Q127 Sarah Champion: Dr Margolis, I think I understood you correctly to say that when you get a claimant you don’t get the context around that claimant. Is that correct?

Dr Margolis: Correct, yes.

Q128 Sarah Champion: So you would not know, for example, of the speed at which the person was hit.

Dr Margolis: You would have an account from the claimant as to what happened, but you would have no way of corroborating that account. It is literally the claimant’s account of the event. The claimant could theoretically go and see an expert and say, "I was stationary and I was hit from behind at 30 mph," when in fact something completely different happened.

Q129 Sarah Champion: What information would you like to be presented with so that you can feel your diagnosis is more robust, knowing all of the evidence?

Dr Margolis: If there is a scenario, which is the case with this type of incident, where there may be two accounts of an incident, and possibly even a third account that is the real one, if you only have one account, then the obvious one would be for the rules to allow, for example, for the insurer who is defending the case to put information into the claims portal so that the expert receives two accounts of what actually happened. The reason why that would be of benefit is because that would potentially achieve a cultural shift. If claimants can go along and give an account that might not be an accurate representation of what happened, and if it was common knowledge that the expert was going to hear the other account, which arguably was the correct account, I would imagine-this is just an opinion-that over a period of time you would get a cultural shift. Those claimants who are not giving an accurate account would give a more accurate account, which would undoubtedly make the expert’s job easier in terms of assessing whether what the person was telling them sounds consistent in terms of their injuries with the indexed accident. That is the fundamental bit that is missing at the moment that would absolutely need to be addressed.

The industry has moved, over the course of years, to try and speed up the whole process. Experts took six months to do a report 10 or 15 years ago and the whole thing was very slow and clunky. Claims literally ran on for years. The world is a much better place in that respect, but certain things have changed along with that. It is now unusual for an expert, particularly in these lower-value claims, to see medical records. In fact there is a rebuttable presumption that they won’t see the records. Again, that is not necessarily that helpful if, as an expert, you are thinking, "Something is not ringing quite true with this person." For example, if the claimant has said, "I’ve never had any previous injuries," again, I do not feel it would be that difficult to have a scenario where, if there was a record of previous accidents, which I believe insurers will have, that the expert should know about that. For instance, to turn up to an assessment having had an injury six months or 12 months previously and not mention it is clearly going to make the job more difficult.

Q130 Sarah Champion: What is your assessment of why you are not given that information?

Dr Margolis: It is just the way the system works at the moment. As I say, over the course of maybe the last 10 years there has been a general drive to try and speed up the process. Claimant lawyers and the insurers want that. They want to settle claims and get on to the next one. Things like medical records are part of the process that is probably the most difficult and time-consuming. There is obviously a cost involved as well. There has almost been an industry move to try and take the records out of the process, but it is possible that the pendulum has just swung a little bit too far the wrong way.

Q131 Sarah Champion: As one of the biggest providers of these sorts of services, have you lobbied to try and get that information?

Dr Margolis: There are all sorts of conversations going on, in the context of the MOJ consultation paper and looking at that, about how the system might be improved. Those are exactly the sorts of things we are talking about: more information to the expert, possibly medical records reviewed, accreditation, some sort of audit and potential sanctions. Those are all sorts of things that we feel would absolutely give more confidence in the process.

Q132 Sarah Champion: I have a final question for clarity. If someone had had three whiplash claims before, you wouldn’t know that when they came and presented to you.

Dr Margolis: The way the system works is that we would receive a letter of instruction, either from a solicitor or an insurance company. That may say no more than, "Road traffic accident; neck injury," or it may be more detailed. We get what we get in terms of the information. As the body in the centre trying to get the expert and the claimant together as efficiently as possible, we don’t get involved in the actual process of instructing the expert in terms of telling the expert about the circumstances of the accident or previous injuries. Unless our instructing source tells us, then the expert would not know.

Q133 Chair: Would it be reasonable to say that a claimant would have to report, whether to their insurance company or to the doctor, a whiplash injury within a given length of time-say, within a week, a fortnight or any other specified time after an accident had occurred?

Dr Brittain-Dissont: Do you mean would the symptoms have to develop within a certain amount of time afterwards?

Q134 Chair: Yes; how long would it take for someone to think they have whiplash injury? If, say, somebody was involved in an accident and six months later, or maybe longer than that, they came and reported that they might have whiplash, should they be ruled out of time?

Dr Brittain-Dissont: If they are reporting symptoms for the first time as having just started after six months, is that what you are referring to?

Q135 Chair: Should there be any limitation there?

Dr Brittain-Dissont: Do you mean when the symptoms first begin or when they first say, "I have"-

Q136 Chair: When somebody reports that they think they have whiplash.

Dr Brittain-Dissont: The essence of the injury is that it is a muscle or ligament tear and it bleeds. As the bleeding collects, you get muscle spasm and therefore within the first day, two days, three days or four days symptoms develop. You can get less common situations where it comes on after seven days if there are mitigating circumstances. If you sprain your knee at the same time and you are given strong painkillers such as Tramadol, it may mask the initial symptoms that come on. When you then take the medication away, when the knee is getting better, the pain becomes more obvious. You must not just be completely blanket, "That’s it." You must listen to the circumstances. If someone has a broken hip, goes into hospital and is on morphine for two weeks, when they come out and the neck is very stiff, you might realise there maybe was an issue that was missed because they were on very powerful painkillers. Again, you would hopefully take a holistic view on it.

With no other factors and purely just injury in a normally robust person, symptoms should usually evolve within the first seven days. It is rarely after seven days unless there are some exceptional circumstances. Beyond two weeks, it becomes almost impossible to know that that would be the reason for the problem being caused in the first place.

Q137 Chair: Are there any examples of a doctor being criticised by a judge or reported to and criticised by the GMC for wrong assessments in these cases-or for misconduct in relation to them?

Dr Brittain-Dissont: I tried to do a search on that. I did not come up with any good, hard instances. I am aware, anecdotally, some years ago of people being called in by judges saying, "This is your practice; there has been some criticism of it; are you seeing too many people a day?" There have been anecdotal instances like that. I did a search to try and find some documented evidence of it and I was not successful in finding anything.

Dr Margolis: I am not aware of any obvious examples. Part of the problem is that, particularly with the more minor injuries that we are talking about, it is very rare that they end up in court. It is very rare that a judge would be assessing the medical evidence. That is, again, potentially one of the issues with the current system. There is very little auditing, for want of a better word, of opinions that experts are offering, and it becomes difficult on a rifle-shot basis to pick off a single report and say, "That opinion was wholly unreasonable." Potentially, one of the routes to making a more robust system is to have some sort of peer review or audit-type process overseen by an independent body that could take a view and look to criticise, if that is the appropriate word, and sanction against experts who are maybe felt to be operating out at the extreme of opinion.

Q138 Chair: What would be the impact of the current proposal to put more or most claimants for whiplash on the small claims track? What would be the impact on those individuals themselves?

Dr Brittain-Dissont: One big impact would be that it is more likely not to burden the health service. You would have people with injuries and little access or able to fund their own therapy. Whereas now the system allows for assessment from a doctor and then referral for treatment or investigation, this would be lost and it would just go to a claims court. There would be an amount of money paid but there would be a lack of follow-up and interventions. Therefore, they would turn up to their GPs and say, "Look, I have this problem. Can you help me?" Waiting lists on physiotherapists and investigations are already very intense and acute. That would be a burden upon the health service that way.

There is a concern that people just don’t fully appreciate the magnitude of their injuries and that maybe an insurance company is not sympathetic to the magnitude of them. I can give an example. If you have neck pain but the pain refers into your arm and it is your dominant arm, and then you develop spasms as a consequence of the injury that is pinching on the nerves, it is still a whiplash injury and neck injury. It may be a particular type of injury that could cause long-term difficulty if that spasm persists and causes indentation of the brachial plexus and therefore gradual increasing debility down one arm. Therefore, that person would then not be treated in the early stages, which is ideal, but would turn up later at the GP and it is a problem to be dealt with by the health service.

There may be other issues in terms of post-traumatic stress, which often develops sometimes after an accident. It is very expensive once you start treating it. Again, this may not be treated properly if it was just going through a small claims court. You are relying on people to understand their injuries very well and to make their own assessments about what their injuries were.

Q139 Chair: Is there any way people could be helped to make their own assessments in situations like that?

Dr Brittain-Dissont: There is always guidance you could give. They would get guidance from their GP, I suppose, from just asking, "Do they have a reasonable view on what I am suffering from here?" There is that access. I imagine help could be given to allow them to assess that better.

Q140 Chair: What percentage of the cases you see would actually go through the small claims process, if the proposals were enacted?

Dr Brittain-Dissont: If it is RTA cases, then probably in the region of about 90% are going to fit into that category of a £1,000 to £5,000 payment. It is the vast majority of them.

Q141 Chair: Dr Margolis, what percentage are you looking at on those?

Dr Margolis: We do not get feedback on what cases settle for, but everything I read and everything we hear anecdotally would support that. It is probably somewhere between 75% and 90% of these types of injuries that would fall into that basket.

Q142 Chair: What if cases were assessed on a standard format and they were dealt with that way rather than the bespoke way you look at them?

Dr Brittain-Dissont: There are two ways of doing reports in the current climate. I do not use any sort of laptop or computer program to do a report. I still do a bespoke report, so the report is different for every single person with individual language for that person. Therefore, every one is different. I hope that gives greater detail and makes the person sound more like a person and not just simply a block case or a reference number. I thought that was still a better way of doing it because we are all talking about how medical experts can be better. We have heard from people saying that the assessments could be better and the reports could be more detailed.

Everyone seems to want detail, to give you records and engineering information. It seems correct that the report itself should start as being very detailed in the first place. Some of the computer reports have not really helped the situation because you are given the language of the computer program and not your language. It confines you pretty much to that. Having the computer interface between you and the patient reduces some of that one-to-one contact that is very useful for a doctor making an assessment. My view is that you are quite right that detail is excellent. A high standard initial quality report, which is evidence-based and highly detailed, is the way forward. I think that is the best way forward rather than the cost-cutting computer laptop reports that have come into the industry as costs have been driven down.

Q143 Chair: Do you think the current concerns that there are a lot of fraudulent claims for whiplash are well-founded or do you think they are exaggerated? If they are there, what do you think could be done to make your assessments more accurate?

Dr Brittain-Dissont: We have all assumed that fraud is out there. That seems to be a natural state of play for any industry. In this case I think it is a bit exaggerated from what I have seen and have seen for 15 years in this industry. I think 7% is probably a sevenfold increase of what I would see. I believe claims can be profiled where there is doubt and concern about the validity of the claim. If it is five unemployed men in a van hired for the day and they hit another five men in a van hired for the day, it would draw a high level of concern that maybe it was not a real accident. Profile those cases and refer them on for a higher-level medical assessment, with this information and maybe with two doctors looking at the case so you get a good dual view at that point, rather then sending everybody with all the information to a doctor every single time. That would surely increase the costs hugely if everyone has to have engineering evidence, medical evidence and everything else. This will not reduce costs but massively increase costs. It would be sensible to profile cases where there is some concern and maybe have two doctors with all the information for those cases. That is just a simple recommendation.

Q144 Chair: Dr Margolis, do you have any suggestions as to how to deal with the issue of fraud in relation to whiplash?

Dr Margolis: Yes. In terms of the numbers, we have obviously heard already this afternoon that there is probably no clear view on what level that is at. There is a significant range in there. There may well be an element of opportunistic exaggeration that goes on. One of the things that could absolutely help address it and has been alluded to here is multifactorial information to the experts to profile, which is a good word, and pick out cases where further and more robust investigation might take place. That might be an investigation by an insurance company as well as a more robust medical assessment. Talking about the experts, again, there could be an auditing of the experts and looking to pick off outliers or experts who may not be behaving appropriately in terms of the opinion they are offering, and having a system and a process in place that can allow that particular issue to be addressed. That would arguably help reduce the cost burden to insurers. That would be a useful approach.

Chair: Thank you very much for coming and answering our questions.

Prepared 29th May 2013