Fraud v. Whiplash

For the moment George Osborne’s reforms for whiplash injuries have been set aside by the government; however, the discussion around potential legislative changes and the commitment to reduction of the number and costs of whiplash claims remains on the Ministry of Justice’s agenda.  Meanwhile, the debate between insurance companies and solicitors remain – is the issue actually fraudulent claims?  What about the rights of the injured victims?

The proposed reform removed the right to general damages (this is a head of damage referred to as a non-economic damage and provides compensation for injuries such as pain and suffering and emotional distress) for minor soft tissue claims and transferred any personal injury claims with a value of up to £5,000 in general damages to the small claims court.   The reasons behind this reform can be summarised as the nationwide requirement for the reduction in both fraudulent claims and motor insurance premiums.

If the issue truly is fraud, let’s take a brief look at the statistics surrounding the data that is available. The Association of Personal Injury Lawyers (APIL) notes that the fraudulent statistics are both inconsistent and incorrectly assessed.  When referring to the total fraud bill in 2015, the Insurance Fraud Task Force includes ‘detected’ fraud in their total of £1.3 million.  Compared with the statistics of the Association of British Insurers (ABI) in 2012 that note only 7% of motor claims were fraudulent.  APIL argues that when separating fraudulent claims and motor vehicle claims, not only is there a clear representation of lower proven fraud, but also that ‘detected’ fraud should be defined as what it is: unproven fraud.

In their news release dated October 13, 2016 ABI does not mention the issue of fraud and discusses at length the requirement for this reform to “tackle the excess of the compensation culture” and to save billions (£4 billion over the court of Parliament) in premiums.

APIL discusses the purpose of general damages is to compensate for the most ‘devastating aspect of any car crash’; the personal injury.  The damage to your car or the car itself can be replaced, whereas personal injury and the loss of enjoyment of life, no matter the size, leaves as lasting effect of the daily life of the victim.

This reform affects the victim on many levels.  From the issues of the compensation being a right for every injured individual, access to justice and the Rule of Law, to lack of representation in the courts the bottom line is that this reform could leave the already vulnerable person at risk.

We have attached various articles for your reference.  While the reform has been set aside, the issues are still relevant and as suggested in the law gazette, maybe this is the time for an independent look at the information and statistics and for the solicitors and insurers to come together to address fraudulent activities and to ensure the rights of victims remain enshrined in today’s common law.

http://www.lawgazette.co.uk/analysis/comment-and-opinion/truss-drops-osbornes-whiplash-baby/5058290.fullarticle

http://www.lawgazette.co.uk/analysis/comment-and-opinion/heres-how-id-tackle-the-whiplash-culture/5058083.article

https://www.abi.org.uk/News/News-releases/2016/10/Ministry-of-Justice-delays-to-whiplash-reform-cost-motorists-nearly-3m-a-day

https://www.apil.org.uk/files/campaigns/government-proposals-to-reform-low-value-personal-injury-claims.pdf

 

 

 

 

 

Why not manslaughter?

For over two decades, RoadPeace has campaigned for manslaughter to apply to all culpable road deaths.  We have argued, that at a minimum—even by CPS’s own standards, the charge of manslaughter  should apply to deaths caused by racing or competitive driving, callous behaviour and driving grossly over the speed limits.

Today on BBC Radio 4 two bereaved family members, who have lost loved ones due to these exact actions, discussed their thoughts on the justice system, Death by Dangerous Driving, Manslaughter and the changes they hope to see in the system that failed them.

On August 12, 2015 Darrell Martin lost his brother Lee Martin.  At the time of his death, Lee was participating in an organised cycling event when he was struck and killed by Christopher Gard; he was texting while driving.   Six weeks before striking and killing Martin, Gard had been convicted of using his phone whilst driving; this was his 8th conviction for the same actions and negligent behaviour.

On July 13, 2015 Major Richard Gilbey lost his 25 year old son, James Gilbey.  James was crossing the road when he was struck and killed by two men who were racing through the streets at speeds in excess of 75mph.  After killing James, Majid Malik and Kaiz Mahmood left the scene to dispose of any evidence linking them to his death.

Both of these tragic stories demonstrate the need for change in order to reduce the loss of lives that occur unnecessarily on the streets of England every day.

At RoadPeace we endeavour to reduce deaths and ongoing trauma that both of these families have incurred.  Our deepest condolences to both the Martin and Gilbey families.

You can listen to the interview here.

Global Road Safety Decade –half over but still no justice

Today marks the halfway point of the UN Decade of Action on Road Safety.  Launched on 11 May 2011, the UN Global Road Safety Plan aimed to first stabilise the rise in road deaths (1.3 million deaths in 2011), before reducing the toll.

When first discussed in 2009, this plan had four pillars – Road Safety Management, Safer Roads, Safer Road Users and Safer Vehicles – that sought to avoid pain, death and suffering and a fifth – on the post crash care – that sought to alleviate them. The fifth pillar was, however, narrowly conceived and only covered medical treatment.

What was missing was justice. RoadPeace and FEVR (European Federation of Road Traffic Victim Associations) were quick to call for change. WHO renamed Pillar 5 to Post Crash Response, expanding its scope to include the promotion of civil compensation, criminal justice, support for victims and crash investigation. Specifically, Post Crash Response Pillar Activity 5 was to: Encourage a thorough investigation into the crash and the application of an effective legal response to road deaths and injuries and therefore encourage fair settlements and justice for the bereaved and injured.

But five years on and over six million road deaths later, we see virtually no progress.

No Justice–not yet

Under Pillar 3 Safer Road Users, the WHO, with assistance from the Bloomberg Foundation, has invested in traffic law enforcement.  It has compared national efforts with speeding, drink and drug driving, and motorcycle helmet use and produced a road safety manual on road safety legislation. But, under Pillar 5, there has been no comparable review on how criminal charges are applied after a road death or serious injury.

More needed

RoadPeace and FEVR continue to lobby for justice. At WHO’s international road safety conference in November 2016, we organised the (only) session on Justice  and RoadPeace produced the briefing on Justice and the Post Crash Response in the Decade of Action for Road Safety.

But still no action. At the recent UN Road Safety meeting in New York in April, another plea was made for WHO to deliver the justice related activities. And since then, RoadPeace has been asked to provide WHO’s Pillar 5 Post Crash Response Working Group with suggestions on what this work should involve.

But much more should be happening. We should not be half way through the Decade of Action before WHO begins thinking about how to deliver their justice commitments.

Crashes are not just predictable and preventable, they are often criminal. Failure to deal respond appropriately compounds the suffering of victims and allows the perpetuation of inequity on our roads.

Hence the need for a proper response by the justice system. And this is not just with helping reduce road deaths and serious injuries, as prioritised by Vision Zero and Safer System approaches. Intimidation from motor vehicles must also be tackled if more people are to walk and cycle, as needed and encouraged in every country in the world.

Peace not War on the Roads

Also on this day, but 14 years ago, the BMJ published War on the Roads. It noted how war was often waged on the weak by the powerful, and with road crashes, many of the victims were pedestrians and cyclists. Most would never own a car.

Since then, road traffic injury has been recognised as a public health epidemic with WHO coordinating the UN Decade of Action for Road Safety. But it has failed to even count the number of deaths caused by criminal conduct–perhaps a holdover of the “unavoidable accident” mentality?

Victims and vulnerable road users deserve better. They deserve justice.

 

 

Legacy and lessons from Hillsborough

As a victims’ charity founded by the bereaved, RoadPeace is more familiar with loss and struggle than celebration. But the Hillsborough inquest verdict last week gave us reason to hope as it was a reminder that justice is possible, even if it does require over a quarter of a century of struggle.

And there was much that our members could empathise with. More families bereaved by a road death end up at the coroners’ court than the criminal court. Coroners continue to play a decisive role in all road deaths as they decide when the body of the deceased can be released and this varies too widely due to second post mortems.

Pauline Fielding, RoadPeace North West Local Group co-ordinator,said

“As a fellow Liverpudlian and a mother still looking for truth and justice following my son’s death in a road crash 22 years ago, I am encouraged by the achievements of the Hillsborough families. Let’s hope that their campaign will be seen by history as a turning point in victims’ struggles for truth and justice and also a warning to “professionals” to always be honest, open and to do their jobs thoroughly. The verdict shows we should never give up on the search for truth and justice. ”

Not just numbers but loved ones 

We welcomed the press seeing the victims not just as numbers but remembered as family members.

Those who died ranged in age from 10 to 67; 37 were teenagers. Three pairs of brothers, one pair of sisters and one father and son, Thomas Howard Sr and Jr, died together. Twenty-six of those who died were parents; 58 children lost a parent. Many of them have, as adults, attended the inquests almost every day during its two-year duration. It is by far the longest case heard by a jury in British legal history.  

Government gratitude for the families’ campaign

As acknowledged by the Home Secretary

“For 27 years the families and survivors of Hillsborough have fought for justice. They have faced hostility, opposition and obfuscation, and the authorities that should have been trusted, have laid blame and tried to protect themselves instead of acting in the public interest. But the families have never faltered in their pursuit of the truth.

Thanks to their actions, they have brought about a proper reinvestigation, and a thorough re-evaluation of what happened at Hillsborough.

That they have done so is extraordinary. I am sure the whole house will want to join me in paying tribute to their courage, determination and resolve. And we should also remember those who have sadly passed away while still waiting for justice.

No one should have to endure what the families and survivors have been through. No one should have to suffer the loss of their loved ones through such appalling circumstances, and no one should have to fight year after year, decade after decade, in the search of the truth.

I hope that for the families and survivors who have been through such difficult times, yesterday’s determinations will bring them closer towards the peace they have been so long denied.”

Impact on families and campaign legacy

Julie Fallon, sister of Andrew Sefton, who was killed at Hillsborough, wrote about the impact on the families. She poignantly noted that “We no longer have any idea of the people we might have been without the influence of this disaster”.

She also wrote about the legacy of their campaign, stating

the truly astonishing fact that we as a support group – a mixed bag of bereaved, devastated family members, thrown together 27 years ago – are still standing here at all. We were not meant to be and if others had their way, we wouldn’t be. This is also our greatest achievement…

So, how on earth are we still standing here, then? We are still standing here because we are decent, ordinary people placed in extraordinary circumstances of someone else’s making. In order not to be cowed whatever the cost, we have had to find within ourselves skills and attributes we never knew we possessed. We are an example of the very best this nation has to offer; dignified, resilient, honourable, compassionate, fair-minded and driven by a determination to have the truth exposed.

And there lies our real legacy, our real headline in history: “Hillsborough – the real truth”. We have paved the way for other ordinary, decent people in this country, who also find themselves in extraordinary circumstances of someone else’s making, to tread the path to truth and justice. We have swept the road before you, heaved boulders, checked for mines, swallowed dust, buried our dead at the roadside and, at times, crawled on our hands and knees, so that the path is now a little easier for you to walk on.

That is the significance of us still standing here after 27 years, and it is what the Hillsborough families should be ultimately remembered for, that we, at a very dear cost to ourselves, have given a measure of power and hope for what is possible, back to the ordinary person.

Lessons for RoadPeace

And whilst we take hope, power remains elusive. Hillsborough has also been a painful reminder that road crash victims regularly “walk alone”. There are no family forums or independent panels provided for them by the justice system. The call for a public advocate to represent the bereaved is limited to cases of mass disasters and will do nothing to help the vast majority of bereaved families who end up in the coroner’s court.  And this includes the majority of families bereaved by crashes.

The Home Secretary was just one of many to praise the determination and the resolve of the Hillsborough families. Their solidarity was credited with being a key reason that justice was achieved.

Similar solidarity is needed amongst road crash victims. And the need is great. The Hillsborough disaster represented a week’s road death toll in 1989, with 5373 killed on Britain’s roads that year. Since Hillsborough, over 85,000 sons and daughters have been killed in crashes in Britain.

As Lord Blunkett noted when debating the Public Advocate bill in the House of Lords,

“At the very moment when people are hurt the most—in one sense disabled the most from being able to be advocates on their own behalf and for those loved ones they have lost—we need to assist them to be able to articulate that hurt and to seek redress. More importantly than redress itself is to be able to investigate and put right those aspects which can be identified as having gone very badly wrong so that others do not have to suffer in that way. Therefore an advocate is needed most at the moment of greatest hurt.”

For over 24 years, RoadPeace has been an advocate for road crash victims. And just as the Hillsborough families’ campaign for justice is not over, neither is RoadPeace’s.

 

Justice and juries

Too frequently, RoadPeace has seen juries allow law-breaking drivers to walk free despite overwhelming evidence.  Their willingness to over-identify with those behind the wheel undermines the rule of law and its enforcement and causes further devastation to bereaved and injured victims. We are therefore very grateful to Martin Porter for drawing attention to this important problem in his recent article in the Guardian.

Martin has proposed removing the right to jury trial for those charged with either-way driving offences (those that can be prosecuted at either the Magistrates Court or Crown Court), starting with dangerous driving that has not caused death or injury.  He has stated that any reform should take account of the views of victims and their representatives. Here we try to clarify our position, based on over two decades supporting and representing road crash victims.

 

For dangerous driving that has not caused death or serious injury

RoadPeace would fully support all such cases starting at the Magistrates Court.  But for the worst cases — for multiple repeat offenders or where the disregard for the safety of others was egregious or extended, the appropriate sentences are beyond their powers. These cases should still be transferred to the Crown Court for sentencing.

 

Should we go further?

RoadPeace has fought for the right to trial at the Crown Court. We campaigned for over 15 years to get death mentioned in the criminal charges and for these cases to be indictable only, i.e. only able to be tried at the Crown Court.  Bereaved families do not want the death of their loved one to be a matter for Magistrates.  They feel insulted when the death of their loved one is treated in the court which also hears shoplifting and other petty crimes. They do not even want the sentencing of drivers to be held at the Magistrates Court, as seen in the cases involving the killings of Karl Austin and Kevin Lane.

We continue to hold this position.

 

For other dangerous driving offences

We had previously included serious injury in our position and called for cases involving serious injury to also be heard in the Crown Court.

But, first and foremost, victims want to see guilty drivers face the proper legal consequences of their actions. They do not want guilty drivers to walk away. This not only undermines justice and traffic law enforcement and discourages the CPS from charging on other cases but causes complete devastation to victims, particularly the bereaved.

From a victim’s perspective, removal of the right to a jury trial is not ideal but perhaps, on balance, a necessary compromise.

It may also be unavoidable for other reasons. Times have changed and budgets are tight. Under Austerity measures, there is much pressure to reduce court costs, including jury trials.  Removing the right to trial by jury was proposed for a wide range of offences by Lord Leveson in his Review of Efficiency in Criminal Proceedings, published in January 2015. This was not restricted to driving offences, and understandably so, as driving offences account for a small percentage of the cases heard at the Crown Court.

For those that argue there is a fundamental right to a jury trial, we remind them that the vast majority of criminal cases are already heard at the Magistrates Court, and thus without a jury. This reform will only be shifting the line slightly.

 

 

Cycling too dangerous? Our justice system shares the blame

So 70% of parents think cycling in London is too dangerous. With this week’s acquittal of Aslan Khayardi, you can see why. Apparently it is acceptable for a driver to

  • break the 30 mph speed limit by over 20mph on a road “shared” with vulnerable road users, while
  • overtaking a cyclist at less than half the recommended safe passing distance.

Who wants to cycle on roads with such drivers? Not the MPS Police Commissioner who thinks it is too dangerous to cycle in London. Not Sadiq Khan who has said he does not allow his daughters to cycle.

And our justice system is to blame for its tolerance of speeding and road danger. Martin Porter, the cycling silk, was forced to make a private prosecution, after the police refused to act even though they had video evidence from a cycle-mounted camera. The footage was analysed by an independent expert collision investigator. The expert’s conclusion, unchallenged in court, was that the driver was doing at least 51-57mph and the overtaking distance 60-80 cm.

Police guidelines recommend court prosecution for drivers going 20mph over a 30mph speed limit. For drivers breaking the 30 mph speed limit by less than 20mph, drivers can be given a Fixed Penalty Notice. But when a driver is going 20mph or more above the 30mph limit, this warrants a court prosecution.

Not just too fast but also too close

It was not just the speed in the vicinity of vulnerable road users that was dangerous—but that should have been enough, given the CPS charging standards for Dangerous Driving that refers to

  • speed, which is particularly inappropriate for the prevailing road or traffic conditions;
  • failing to have a proper and safe regard for vulnerable road users such as cyclists ….

DfT guidelines advocate 1.5 m safe overtaking distance for drivers in 30mph roads. Passing at around half this distance while approaching twice this speed could in no circumstances be considered a display of “proper and safe regard”.

 One driver a day is convicted of Dangerous Driving in London

Dangerous driving prosecutions are very rare, as we highlighted in our testimony to the London Police and Crime committee in their recent session on road crime in London.

The failure of the Police to take action not only meant that Martin was forced to take up a private prosecution but that this was used against the case in court. The driver’s defence counsel made out that the private prosecution represented a private vendetta and that the failure of the Police to bring a case was proof that there was no real case to answer. The jury concluded that the driver was guilty of neither dangerous driving, nor the lesser offence of careless driving, which was an option available to them.

This needs to change. Sadiq Khan’s manifesto, just launched, supports making the roads safer for cycling and walking. As his manifesto acknowledges, active travel is not just a transport issue but also an environmental and public health matter, and understandably so. What isn’t understandable is the lack of appreciation that it is also a justice issue. Greater traffic law enforcement and justice is needed, if cycling is really to become the norm.

RoadPeace called for this in our submission to his consultation on his manifesto and also in our own London Mayoral Manifesto.

We will continue to call for it, as we do not believe our cycling revolution will happen until we have justice on our roads.

 

Remembering road deaths and crime

Today on the World Day of Remembrance for Road Traffic Victims, we remember those killed in crashes. These are violent, unnatural and unnecessary deaths and we empathise with the victims of the terrorist attacks in Paris. Just as no one expects nor deserves to die whilst travelling to work or school, nor should people be killed at a restaurant or at a concert.

And whilst deaths caused by terrorism are rare for most of the world, we cannot say the same about road deaths. Over 1.25 million are killed each year. Crashes are the leading cause of death for 15-29 year olds in the world.

Nor can we forget the victims from previous years. Since RoadPeace held the first Day of Remembrance for road traffic victims in 1993, over 22 million people have died in crashes. A road death is a life sentence for the families as traumatic bereavement has lasting consequences. Our members talk about coping and adjustment, not recovery.

Since the UN launched its Decade of Action for Road Safety in May 2011, WHO has led the international efforts, and that has included improving the information base about the casualties.

We now know much about these unnatural and unnecessary deaths. We know that three out of every four are male. Women are the ones left behind—the mothers, wives, sisters and daughters—and often the ones demanding change.

We know where they were killed. Almost three quarters of them occur in middle income countries. We know in which region of the world they are concentrated. Africa has the highest road death rate.

We know their ages and how premature their deaths were. Older children and young adults, those aged between 15-44 years, account for almost half of all deaths. They are old enough to have children of their own but still have their own parents alive, thus devastating both young and older relatives.

We know how they were travelling when they were killed. Pedestrians were 22% of those killed globally, but accounted for 39% of the road deaths in Africa. Motorcyclists were 23% of the world’s road deaths but were over one in three of those killed in South East Asia. Motor vehicle occupants accounted for the largest number of those killed.

But what we don’t know is how many involved road traffic crime. We do not know how many were innocent victims killed by the unlawful actions of others. This data is not collected by WHO or even by most countries, including here in England and Wales. We should know this but we don’t. whilst WHO has invested much effort in reviewing basic road traffic laws, including speeding and drink-driving, this has yet to include the criminal charges that apply after a death or injury has been caused by driving.

The UN Decade of Action for Road Safety is almost half way through. WHO’s Global Road Safety Status Report 2015 concluded that road deaths have stopped increasing, but they have not yet begun to decrease. The new UN Sustainable Development Goals has included the target of halving global road deaths and injuries by 2020, but this will require a step change in commitment from government in prevention efforts.

This week, the international community gathers in Brasilia to take stock of the progress made and the challenges that lie ahead. RoadPeace will be there arguing the case for justice to be an integral part of road traffic injury prevention.

The first half of the Decade included raising awareness that crashes were not accidents  (and this campaign is not just continuing but growing, thanks to Transportation Alternatives in New York City).

But now we must also remember that not only are crashes not accidents, but too often they are also crimes.