5 ways to lose a Personal Injury claim

Bang to rights!  Money’s practically in the bank.  Rear-end-shunt?  You can’t lose!  Insurance companies always pay!

That’s how they sell it.  Two grand.  Three grand.  Easy money.  Just sign here.

Think again.

Unfortunately, in today’s Personal Injury claims world, bankable certainties aren’t quite as bankable, or certain, as they once were.  The real world can, and does, bite.

Insurance companies target weaknesses which they magnify from trivial error into full-scale disaster.  They’re sophisticated, effective, and very good at waiting for the moment to drop the bomb.

Here’s five top insurance company targets when fighting Road Traffic Accident claims.

  1. Inconsistency.
  2. Delay.
  3. Subjectivity (symptom description).
  4. Minor damage.
  5. Accident Management Companies and Claims Management Companies.

Inconsistency

This is a top chestnut.  Insurers love to point out contradictions in key documents.

For instance, the Claims Notification Form (the CNF starts most claims) and the medical report.  The doctor says you suffered injury to your left shoulder, but in the CNF it’s your right shoulder.

Or, in the estimate, the damage to your car was on the passenger side, but the impact described in the report to the insurers was on the driver’s side.

Even in high-value claims, insurers and their lawyers argue furiously about tiny details, for instance, a claim for travel expenses worth a few pounds but for the wrong date.   Having pointed out the mistake, they then argue the claim was a deliberate invention.

 Delay

These days insurers often make judgements, then ask questions.

Woe betide the Claimant who hasn’t notified the claim early on.

The data-selling business is to blame mostly for this.  There are companies that data-mine – they employ call centres to trawl for potential claims – those texts – “£3,000 is earmarked for your accident claim” – that’s data-mining companies.

But if you happen to be someone who genuinely didn’t want to make a claim, didn’t want the hassle, the paperwork, the grief, but then, those uncomplicated symptoms didn’t go away, insurers just assume there’s something wrong with the claim you make.

It doesn’t matter that the law allows you three whole years to start legal proceedings.

It doesn’t matter that you’ve got good evidence showing medical investigations, treatment, recurring symptoms.

Insurers stick a big red flag next to your name.

Subjectivity

This sounds clever, but it’s not!

If you suffer what is usually called “soft tissue” injury, unless you undergo expensive imaging, there is nothing to show for your pain.  You take painkillers.  You might even be referred for physio.  You wake up in the morning thinking: that hurts!  But there are no broken bones.  There’s not even bruised skin.

For these injuries only you can describe the pain and discomfort you feel.  This is what is meant by “subjective”.

The argument goes like this: as there is no “objective” evidence, as you have merely “self-reported”, there can’t be any injury.

But insurers are not content with this.  They continue: if the symptoms are only “subjective” not only do they not exist, it must follow that you, the Claimant, are at best, exaggerating, or, at worst, an out and out liar.

Minor damage

There’s a whole industry of minor damage and “low velocity” cases.

If have the misfortune to be stationary, stretching to get something out of the glove compartment, when someone hits you are 10mph, leaving an almost invisible amount of damage to your car, insurers will fight to trial to prove you can’t possibly have been injured.

And Judges are equally hostile to Claimants when the images of the vehicle damage require close inspection to find scratches or dents.

The category of “low velocity” cases has lead to much legal debate and much procedural detail having to be introduced which tends to weight the case against the Claimant.

Fighting a “low velocity” case to trial is like proving a negative.  Proving that you haven’t exaggerated, over-stated, invented, is hard when a Judge seems to start from the assumption that the case is bogus.

Accident management Companies and Claims Management Companies

In the last 20 years insurers have pooled data.   This has enabled them to stick big red flags on the sources of referred cases.

It doesn’t matter if you are innocent, that you really are the victim of a reckless idiot, as a result of which your losses are mounting.

If the referrer of your case is known, that alone will be enough for insurers to stonewall, avoid, then, if you fight, to fight harder.

Not falling into the traps

None of the 5 aspects of claims commented on above, are definitive of failure.

But each is like quicksand.  Once the insurers have hoisted the red flag, some, or all, of the other problem elements, tend to be sucked into the quicksand too, and then you really are in trouble.

As with everything in litigation, the sooner issues are identified, the sooner it becomes possible to judge how to fend off unwarranted attacks.

This takes experience.  And a decision to act, rather than just hope that it will all come out in the wash, as used to be the myth.

In these times of a flourishing industry of insurance companies obtaining fundamentally dishonest findings against Claimants, being decisive is a requirement for Claimant solicitors who’d like to continue to fight bona fide cases.