Personal injuries - a moral question.
In April 2009, I was hit at the rear by a hit-and-run driver in a stolen car. Police were involved, but driver and car never traced. My car was repaired by my own insurers, and I eventually got my excess back as a "no fault" claim. At the time, I was asked if there were any injuries to my wife and myself, and said that there were none. After several days we did suffer neck pains. Mine cleared up after several weeks, but my wife still has periods of neck pain.
Periodically, I have received telephone calls about "an accident that I was involved in", and offered a 'no-win-no-fee' representation, and no cost or loss from claimed sum if successful. I have declined until this morning, but curiosity and repetition of calls got the better of me, and I allowed them to go into details about the incident.
We have no previous experience of 'whiplash', and genuinely believe we have suffered from this. But we both have reservations morally, concerning these 'no-win-no-fee' situations.
I have since changed insurers, but am told this is irrelevant.
My quandry is:
(1) Would it be right to go ahead with a possible claim, even though we believe we did suffer whiplash?
(2) From a purely selfish aspect, could such a claim adversely affect my future premiums?
(3) In truth, how honest are these types of pursuances for compensation?
(4) From both a moral position, and future position regarding acceptance of insurance proposals and/or attributable premium loading, would it be best to simply close the door on the issue?
I'm no expert, but I've had some experience of whiplash injuries and claims: minor myself (twice), and serious in my wife's case - she eventually had to give up work. My thoughts:
1. Of course it would be right, as you were injured and are suffering as a result of an accident that wasn't your fault. There may be a practical problem however: unless you were examined by a doctor at the time of the accident or shortly afterwards, it may be difficult/impossible to attribute any injury to the accident. The standard advice is to go to your GP or A & E ASAP after the accident even if you don't feel any pain, as it may take some time to manifest itself (as your wife has unfortunately discovered).
2. It shouldn't affect you, since presumably you have already declared the accident to your new insurers. However, never underestimate the ability of insurers to find reasons to load premiums ...
3. As you will be aware, there's a lot of concern about false or exaggerated whiplash claims, and the insurers are increasingly sceptical. You shouldn't let that deter you from making a genuine claim.
4. There's nothing immoral about pursuing a claim. Even though the guilty party has escaped, the MIB Untraced Drivers Scheme was set up for exactly this purpose, and in any event it's what we buy insurance for. As for future insurance, see 2 above.
Thanks for your comments, Beelzebub. We were probably wrong to dismiss the subsequent neck pains shortly after the incident. Shortly after this, i had a fall onto hard ground and took the weight on my forearm, and am now having pain, so I think that I should not make a claim for myself. This might cloud the issue, and would not avoid disclosing this factor. My main concern is that my wife seems not to have got free from neck pains since.
Your comment (2) presents room for thought though; I definitely share your scepticism on that point.
You would not be claiming against your insurer, you would be claiming against the vehicle driver who caused the crash he would pass this to his insurers.
Originally Posted by Snowball
That would bother me, wagolynn. The car was stolen, never recovered, and the illegal driver never traced. I got all my costs back as a 'no fault' claim (MIB?). I don't wish to add possible problems for the registered owner/keeper, as I know how I would feel in his/her situation. "Blow you Jack!" is not acceptable to me, so I'll not pursue this.
Originally Posted by wagolynn
The 'no-win-no-fee' insurers came back to me today. Have to refer to them thus, as I still wasn't able to discover their identity. However, I advised them that it is now water under the bridge; that I want to forget the incident and move on. It took two calls (from two different callers) in quick succession before (hopefully) they got the message.
I work in personal injury law (for a law firm I hasten to add and not a claims management firm), and whilst you have decided to move on, I thought it may help for future reference if I gave an lay persons explanation of how the no win no fee funding of a case works.
Originally Posted by Snowball
Firstly, any person who has been injured as a result of anothers negligence or carelessnes has 3 years from date of injury or date of knowledge (whichever is the sooner) to issue proceedings for a personal injury claim, this is called the statute of liability. There are 2 exceptions where the statute does not apply, and that is to people who are incapable of looking after their own affairs, for example a brain injury, or juveniles.
There are various ways that a personal injury case can be funded, Legal expenses insurance which often means that you end up on a conveyor belt of a law firm appointed by the insurers and whose fee earners will be mainly paralegals, legal execs or newly qualified solicitors.
The other alternative is by way of a Conditional Fee Agreement (CFA) which is better known as a no win no fee arrangement and which replaced legal aid for personal injury cases about 10 years or so ago.
The way it works is that you contact a solicitor that you wish to represent you in a personal injury case.
They will take your details and carry out a risk assessment of the circumstances and providing it is deemed that there is on the balance of probability a better than 51% chance of success in winning the case, they will offer you a CFA.
Now with a CFA the solicitor is to a certain degree takking a bit of a gamble as the full facts will not be known until such time as all the evidence has been gathered.
The law firm will pay all disbursments, for example Police reports, expert reports, medical reports and fund the case all the way to its conclusion. Once liability has been agreed, then they will claim their fees plus their costs from the third party, and the claimant will be paid 100% of their compensation award.
However, if the case goes to trial, then to avoid the claimant being lumbered with a potentially huge legal bill in the event that the case is lost, then your solicitor will take out what is called an after the event insurance which protects you and ensures that the third party legal fees are paid, and you do not get a nasty surprise.
If the case is lost, then your solicitor gets paid nothing other than the dispursments they paid for to run your case, but they still will noot come chasing after you for money, because that is the risk they accepted when they took on your case and which is why solicitors on a CFA are more likely to fight your corner than a law firm under legal expenses as LEI instructed firmsd get paid regardless of whether they win or lose or do a good or bad job.
The cost of the ATE insurance can range from a few hundred pounds to many thousands depending on the severity and difficulty of the case, but again this is paid for by the law firm and claimed back on settlement.
However, claims management firms who are unregulated often use or run different rules as they do not carry out proper risk assessments and they will usually pay large referal fees to buy a case in, and this fee, often in excess of £1,000 has to be earnt before any profit is made.
If a case is worth less than £15,000 (often the likes of whiplash) then this is what is called a fast track claim and legal fees are capped at around £800 - £1400 which is why often junior legal people handle these cases, and they are dealt with using the insurance portal.
Over £15,000 then it becomes what is called multi track where fees by and large are uncapped and usually takes in the more severe or catastrophic claims and are the cases which will take considerably longer to settle, which is why at the moment law firms can also charge a success fee to reflect the risk of running the case as well as the time that they will be out of pocket until the case settles.
The only time a client on a CFA is likely to be asked for money is if -
The client deliberatley mislead their solicitor, for example the client leads the solicitor to belive the injury sustained is far more serious than it actually is and so more time and effort is expended in proving this.
Or if the client terminates the agreement for no apparent reason before the solicitor has had a chance to claim back their reasonable costs incurred to date
In both these cases, the solicitor is entilted to bill the client for reasonable costs incurred to that point, but to be fair it very rarely happens.
Regardless of whethere your case is funded under a CFA or LEI, if you decide that you wish to change solicitors, then again their is no cost to you in 99% of cases. All that happens is that the new law firm or solicitor provides a guarantee or undertaking to the old firm that their reasonable costs for work done up to that time will be paid on settlement of the case, at which point the old firm must hand all the case papers over to the new law firm or solicitor.
I hope that explains things in an understandable way.
Thanks for the insight as to how personal injury claims work, TC1474.
Originally Posted by TC1474
The extract I have taken from your explanation is what I was concerned about.
When the "whoever" called me, I co-operated mainly to try and discover exactly who they were (unsuccessfully though), so that I could 'persuade' them to cease calling.
The brief discussion with them did include 'third party' reference, and I took this to mean the owner/keeper of the stolen vehicle.
Whatever the law may be, if this is the case then it is morally wrong. I do not believe that a person should be held accountable for a situation not of his/her own making, it being due to an act by a thief who escaped being caught, and I refuse to be party to such a situation.
Sorry, I should have explained that in your case, if the vehicle is stolen or the driver is untraced or uninsured, then the case would be referred to the Motor Insurance Bureau (MIB) who in affect become the third party defendants.
Originally Posted by Snowball
There is a different protocol for MIB claims, and usually requires a specialist solicitor to handle such claims as the MIB will jump on any lapse in the protocol and use it as their get out of jail free card.
The biggest mistake I see that often occurs is that claimants often fail to name the MIB as the second defendant when they issue proceedings in cases where the name of the driver is known.
That aside, the fees paid out by the MIB are often lower than a conventional third party insurer (obviously they are trying to protect our money as honest insurance paying motorists), and they take a lot longer to respond, but the basic principal os by and large the same as a normal third party claim.
In some cases, the insurers on risk at the time of the vehicle being stolen have been held liable for the third party claim, particularly if the crash occured before the Police were notified that it was stolen.
But the bottom line is that you were contacted by a claims management firm who are unregulated, will sell your case on for a fee (although some insurers are guilty of this), and these management firms often screw up the claim before it even starts.
You are always better off in personal injury cases going to a personal injury law firm of your choosing, and being funded under a CFA and give these Ambulance chasers a wide berth.