Blog: No win, no fee? No chance

Blog: You have to admire their impertinence. Almost three years after a council vehicle tapped a lorry belonging to S&S Scaffolding Ltd, its three occupants took the local authority to court to request compensation for whiplash injuries they claimed that they had received in the incident.

Unfortunately for them the defendant in the case took the unprecedented decision to defend itself, instead of lying prostrate while simultaneously handing over its Visa card and PIN.

In short, Wigan council told James Stubbs and Thomas and Gareth Gemmell to sling their collective hook.

Its secret weapon? Well, confidence and hard-headed resolve, for a start. But Wigan council also had proof that the impact had taken place at under 2mph, where the most severe injury threat those on board faced was a sprained finger if they happened to have been picking their nose at the time.

The scaffolders had their claim dismissed on the basis that injury was an impossibility at that speed unless their heads weighed half a tonne each. Their lawyers, who were angling for a stratospheric £50,000 in fees for the privilege of walking through the courtroom door, were handed an invoice instead of a cheque as the dogged council was awarded £9,332 for the inconvenience.

This represents a rare conjunction between the worlds of civil litigation and the filling of water balloons: both can blow up in your face.

It is cases like this that give rise to the notion of a 'compensation culture'. Statistics are irrelevant because we can't prove who has submitted a fraudulent claim and who hasn't (unless they're one of those charming individuals from Birmingham who routinely crash at the same roundabout five times a day on command).

A culture is all about perception and judging by the hundreds of vitriol-spewing comments on the Daily Mail's online report of the story, this one certainly exists.

'Injury compensation' has become a hateful phrase associated with garish daytime television adverts featuring people last seen on primetime television when Margaret Thatcher was still throwing darts at photos of Arthur Scargill. 'Compensation' should be just that: where somebody has been seriously injured it would take a pretty callous individual to argue that they should be entitled to nothing. The purpose of financial redress in these cases is to attempt to return the plaintiff to the position in which they found themselves before their injury. Since this is often impossible, unless the defendant has a time machine in his basement or is a pioneering microsurgeon, he is ordered to pay punitive damages instead.

The problem is that grasping chancers ruin it for everyone else. They weren't injured. And even if they were: why the hell would they wait so long before pursuing a case?

The onus is wrong here: compensation should only be awarded if there is no other option, not as a retrospective scheme to top up an anaemic wage packet. You can almost hear the exchange in the pub:

'The missus wants to go to Spain again this year, but unless I win the lottery we're going nowhere.'

'Do you play the lottery?'

'Er….no.'

'Didn't you have a crash a couple of years ago? You should make a claim for that. Ought to get you a week in the Costa del Sol all right.'

In so many cases making a claim is undoubtedly, as Mark Knopfler mumbled in 1985, 'money for nothing'.

The basics of the system are undoubtedly rooted in honourable intent. Take the case of a baby brain-damaged at birth and who needs expensive, 24/7 care for the rest of their days. The NHS, if found to be at fault for the child's condition, should pay for this treatment, no questions asked.

If an ignorant motorist, likewise, drives out of a side turning and annihilates an oncoming motorcyclist because they were trying to decide which Meat Loaf CD to take out of the glovebox, again they should be liable to pay something towards rehabilitation while the poor sod lies in a hospital bed for months being forced to watch personal injury adverts.

But these sorts of cases constitute a tiny minority. The vast bulk of personal injury actions are founded on the basis of whiplash, the fraudster's meal ticket because its presence is incredibly difficult to disprove.

There is a distinction to be made between someone who disconnects his brake lights in order to be able to claim for a staged impact, and the ordinary motorist who decides to see if he can fund an upgrade to a new Ford Focus with help from somebody else's insurance company. But there the distinction ends: both are dishonest, exploitative abusers of a system that is supposed to be benevolent towards genuine victims. This is another word that has been misappropriated: somebody with a sore neck after a tap in traffic is not a 'victim', they're a deluded whinger whose only injury is a slight sprain resulting from the chip on their shoulder.

There are changes afoot to make these road traffic accident claims more straightforward and inexpensive to contest. There are also plans to slap an ASBO on any advert containing the dreaded buzzwords 'no win, no fee' to try and discourage such spurious cash-fishing.

In time, perhaps we will see the numbers of claims fall and maybe even note a corresponding drop in our motor insurance prices.

But then again, the insurers themselves are the biggest chancers of all.

That, however, is another story….

The author works in the insurance industry