02/14/2022

Changes to the Highway Code – opportunity knocks for fraudsters?

Changes to the Highway Code came into force on 29 January 2022. As road users and their insurance companies pore over the changes to ensure that they are not exposing themselves or others to unnecessary risks, you can bet that those engaged in the business of fraudulent claims are looking at the rules to see how they can be best exploited.

It seems that drivers are already responding to their increased risk of being found liable for accidents with vulnerable road users, with news articles reporting an increase in the sale of dash cams.

What are the changes?

There are numerous changes which are explained in our latest webinar from the Kennedys’ Motor team. For the purposes of considering the potential impact on fraudulent claims, it is primarily relevant that the Highway Code now sets out a hierarchy of road users, with the most vulnerable at the top of that hierarchy. Pedestrians have the greatest protection, followed by cyclists, horse riders and drivers of horse-drawn vehicles in the same category and then motorists, including motorcyclists.

A key change is that pedestrians have to be given preference if they are waiting to cross a road at a junction.

The golden goose?

Where any law tips the balance in favour of a particular party on liability, you can see how it becomes attractive to those involved in the presentation of, and even orchestration, of fraudulent claims.

We have seen this with “slam-ons” being the method of choice for cash for crash gangs, as they use the presumption of liability attaching to the party in the rear vehicle. We also know that commercial and liveried vehicles are often targeted and this is likely to remain the case with deliberately contrived accidents in other scenarios.

The main purpose of these changes to the Highway Code are to ensure that vulnerable road users are protected; generally the more vulnerable you are, the more protection you have.

It will not have escaped the notice of those dealing with motor personal injury claims that vulnerable road users are also a category of claimant excluded from the OIC portal and are not constrained by the new whiplash tariff.

Putting these two factors together, it is easy to see why fraudsters would be tempted to target these particular claims, as the burden of proof will be in their favour. It could well be that claims management companies will specifically hone in on victims in order to maximise their income as these claims will be valuable commodities.

The risk

There is the possibility of accidents being deliberately instigated with a stooge pedestrian or cyclist. Whilst there are unlikely to be a significant number of these claims, given the inherent danger to those stooges, history has shown us that there are always those willing to put themselves in danger for the purposes of advancing a personal injury claim.

More likely, we perceive the risk from these changes to be near misses being presented as accidents and also perhaps a ‘reason’ for sudden braking being a pedestrian about to step into the road or a cyclist exercising their right of way.

An easier path to establishing breach of duty is inevitably going to be exploited by the fraudsters. History tells us that as the increased cost of living starts to bite, an increase in fraud is inevitable. Whether these changes to the Highway Code present an enhanced opportunity for fraudsters remains to be seen.