2021-04-09

Whiplash reforms and independent witnesses: early contact and inference from absence?

The new whiplash reforms will place additional pressure upon insurers to investigate liability promptly and efficiently.

The new rules allow an insurer 30 working days to make a decision regarding liability. If no decision is forthcoming they are deemed to admit liability and where liability is denied in part or in full they will need to provide their policyholder’s version of events. This must set out exactly why liability is disputed and must be supported by a statement of truth.

Policyholders contacted within 30 days for a signed version of events will hopefully yield more accurate descriptions of the accident circumstances whilst still ‘fresh in the mind’. Any contact details of independent witnesses will also hopefully still be to hand and not lost by the passage of time. Early contact with said witnesses can be imperative in securing a witness who is still willing to assist with investigations and who still has a reasonable memory of events rather than one who is contacted out of the blue by a solicitor two years later. We all know the familiar feeling of relief when an independent witness, against the odds, agrees to assist your client at a final liability hearing by attending and giving evidence!

There is no onus upon insurers to also provide a signed account from any independent witnesses, however it would logically follow that if the emphasis is on early upfront investigations, it would be sensible to also obtain a version of events from any witnesses as quickly as possible for disclosure.

Independent witness evidence does not fail if it's not ‘watertight’. As is often the case, someone who witnesses a collision was not expecting to do so, and was not participating in the events leading up to the collision itself. Recollection is therefore processed differently and it is rare to have an independent witness who recalls every aspect of the collision in specific detail – in fact this is somewhat suspicious! However many a trial judge will appreciate the facts stated above and will still give weight to the evidence if the witness is consistent with the facts they do clearly remember.

In my experience the absence of a witness who both parties agree was present at the scene draws a greater adverse inference than a witness who perhaps does not have the strongest recollection of events but is consistent and clearly willing to assist one particular party.

Now that insurers have to make contact within 30 days it is reasonable to assume that any witness contact details Policyholders provide should be given within this timeframe. Any witness details suddenly now received six months following the collision once these investigations have already taken place, arguably need to be highly scrutinised.

Do you think the new whiplash reforms will result in an increase in co-operation from independent witnesses resulting in quicker liability resolutions? I certainly hope so!