Wednesday, 18 January 2012

Technology is not a panacea for whiplash claims


Last week a press release from ‘pay-as-you-drive telematics-based car insurer Coverbox’ landed in my inbox. Its first line gave me pause for thought:
Technology which can measure the level of impact in traffic accidents – and help determine the likelihood of whiplash injuries – is already installed in thousands of vehicles insured by pay-as-you-drive telematics-based car insurers.
The press release was issued on behalf of Coverbox, a company at the vanguard of what is known as ‘telematics insurance technology’ because it installs equipment in vehicles which track their every move. As Coverbox’s managing director, Johan van de Merwe, puts it: “When a driver takes out an insurance policy with a telematics insurer, we install a small box which records the distance the vehicle covers, and charge accordingly. But the equipment also records many more parameters – including acceleration, deceleration, speed, and so on – which helps us determine driving standards.”
According to van de Merwe, telematics insurance is of more benefit to careful drivers because of the accuracy of the information about driver behaviour acquired by Coverbox. This, in turn, “allows us to be far more discerning in terms of who we insure”.
That’s all well and good – so far as it goes. Insurers need to be certain of their technology and, moreover, to remember its limitations. But it seems doubtful that they do so when they contend that telematics insurance can assist in determining the extent of whiplash injuries. This was argued by van de Merwe in the Coverbox press release as follows: “Telematic insurers can also use the equipment to measure the magnitude of an impact ... [this] can serve as a very useful guide in distinguishing claims needing investigation from those where a high probability of whiplash exists.”
Really? I am not so sure. There is a massive amount of hype about whiplash and a bandwagon of ever louder import which maintains that it doesn’t even exist. As I have previously written, members of the Association of British Insurers (ABI) have started using software privately dubbed as a ‘whiplash lie detector test’ to expose what the ABI believes are almost always bogus claims. This, despite the cutting edge research and findings of a clinical psychologist such as Dr Jannie van der Merwe to the effect that even if physically verifiable trauma does not accompany whiplash, it is no less debilitating for its sufferer.
Indeed, from my perspective as a solicitor, it is hard to imagine quite how anyone would maintain that whiplash is a fiction. My practice has seen many clients whose experience of whiplash is every bit as real as the accident that caused it. They are in genuine pain and have every right to claim for compensation. I cannot, therefore, but be concerned when I read of what seems to be a technology-based approach to determining whiplash claims. The whole point about pain is that it is subjective. Symptoms will vary from person to person. Each person’s physiology is different, too. What has happened to age-old principle, in tort law, that one must take one’s victim as one finds him?
My worry, if something like telematics insurance is taken too far, is that we will forget the human dimension. Insurers may not always like it but the people they insure are just that – people. They need to be treated as such.
I am delighted to be chairing a conference on May 15 at the Grange City Hotel on Cooper’s Row, London that will explore these and other issues. Dr Van de Merwe is one of the speakers; who knows, perhaps the other van de Merwe (Coverbox’s MD) will be in the audience. I hope so. There are many issues surrounding whiplash and the wider ranging the debate, the better. Ultimately, we should all be pulling together to create a system which compensates its insured victims fairly – and acknowledges that there is more to an injury than the visceral evidence of a broken bone.
Whiplash: The Evidence takes place on May 15 at the Grange City Hotel, 8-14 Cooper’s Row, London EC3N 2BQ. Registration starts at 08.45. Contact John via john.spencer@spencerssolicitors.com for more information.