6,000 say don't make innocent victims pay

Just before Christmas, Cycling UK joined up with walking and road crash victim charities to send a message to the Government to think again about changes to civil compensation procedures which restrict vulnerable road users (VRU) access to justice.

Six thousand people supported our Road Victims are Real Victims campaign, and wrote to the Ministry of Justice (MoJ) expressing alarm regarding reforms sold to the public as a clampdown on fraudulent and exaggerated whiplash claims, but which disproportionately affect people cycling and walking rather than than car occupants who might actually claim for whiplash.

Some commentators on Cycling UK's previous report on cyclists' compensation being cut to feed fat-cat insurers, and Road.cc's article about how the proposed increase in the small claims limit to £5,000 will prevent cyclists and pedestrians from recovering costs in 70% of claims, expressed surprise about why we are making such a fuss about this given that the title of the Ministry of Justice (MoJ) consultation refers specifically to whiplash, with the MoJ proposing that some changes only apply to occupants of motor vehicles seeking compensation for soft tissue injuries.

The fact that people are confused isn't surprising, given that during yesterday's parliamentary debate on Access to Justice some Conservative MPs who voiced their support for the Government's plans seemingly didn't realise which claims would be affected, or the implications.

Burying the detail

The particular reform which would be disastrous for VRUs is the increase in the small claims limit from £1,000 to £5,000. The proposal is to increase this for all personal injury (PI) claims. This shouldn't have been buried within a consultation supposedly about whiplash reform. This increase not only affects VRUs claiming for broken collarbones and other fractures, but employees claiming compensation for accidents at work, public liability and medical negligence claims. If your claim is worth less than £5,000, the MoJ assumes it must be straightforward and can be dealt with in the small claims track.

Being classed as a small claim matters. It's not a legal nicety. Raising the limit to £5,000 would mean that if your cycling PI claim is worth £6,000, and your legal costs are £3,000, you can recover £6,000 and have your costs paid by the driver's insurer. If your claim is only worth £3,500, then you pay your £3,000 legal costs out of the compensation, leaving you with £500 net. There is no costs recovery in small claims cases, and as 70% of cyclists' PI claims are under £5,000, this change cheats cyclists out of compensation when they have been injured by others on the roads. 

If it was the MoJ's intention that the hullabaloo about whiplash and fraudulent claims would allow the wider implications of the small claims limit changes to pass under the radar, unfortunately it worked. During yesterday's debate Chris Philp, Conservative MP for Croydon South, stood up to profess his support for the Government's proposals and question the concerns raised by Rob Marris MP regarding the impact of these changes on cyclists with broken bones. He asserted that he had "looked at the consultation, and it specifically refers to soft tissue claims", before acknowledging that of course a claim for a broken leg was different. He had to be politely reminded by Marris that the small claims increase applied to all PI cases.

Man-up, injury is an occupational hazard

Further expressions of support for an increase in the small claims limit, with reference to soft tissue injuries, followed from Philp's fellow Conservative MP Craig Tracey, again without an apparent appreciation of the Government's intention to apply this to all PI claims. The fact that innocent crash victims will face Hobson's choice, and have to decide whether to represent themselves when seeking compensation, or incur legal costs they can't recover, keeps being lost in the clamour to denounce the perceived compensation culture, and belittle others' 'minor injuries', which Tracey suggested "are similar to those sustained on the sports pitches around the country day in, day out, where no one would give a second thought to making a claim against an opponent".

Perhaps the message to the cyclist knocked off by a negligent driver, nursing a broken wrist, should be to just man-up, and accept it as an occupational hazard of sharing the road?   

Cyclist and pedestrian collisions which lead to compensation claims typically involve fractures and injuries other than whiplash. Creating barriers which make it harder for them to claim compensation, and dressing those up as whiplash reform, sends the wrong message regarding VRU safety and how victims are valued, a view shared by charities Living Streets and RoadPeace who joined with Cycling UK to oppose these changes. 

Fictional access to justice

Cycling UK's response to the consultation (attached), which closed last Friday, includes a detailed explanation in answer to question 13 as to why raising the small claims limit would amount to a denial of justice for injured cyclists. Justice that people can't afford, or which they aren't confident or able to access without representation, is just a pleasant fiction.

The MoJ intend to publish their response to the consultation in April, and Cycling UK will continue to lobby and campaign in the meantime, in the hope that the penny might drop with Members of Parliament that the label on the reform package says one thing, but the content is a surprise.

If your MP is one of the many who haven't looked past the label yet, perhaps they can explain to you why a cyclist with fractures should pay their own legal costs to obtain compensation, rather than the insurers for an at fault driver, and why the interests of insurers trump those of victims; that's the bottom line with these changes.