Thursday, 12 April 2012

Whiplash caused injury is not a bogus condition

Whiplash never ceases to polarise opinions. On the one hand, there are those who say that whiplash is a synonym for an imagined condition, that it’s shorthand for ‘delusional and malingering’. Those who endorse this view tend to be insurers and/or members of the present government; the latter see whiplash as an example of ‘compensation culture’. On the other hand, there are many who argue convincingly that whiplash is a genuine and profoundly debilitating medical problem. Those who speak most persuasively from this corner are victims of accidents which have left them suffering from whiplash.

It is these people – the victims and sufferers – to whom we should listen most carefully. Insurers have a vested interest in scotching the existence, in medico-legal terms, of whiplash: they won’t have to pay out what tends to be an average of £2,500 per claim. The government uses whiplash for PR purposes, lambasting compensation culture at the same time as many of its members have financial interests in the insurance industry (even so, they might care to compare and contrast the UK position to the situation in Switzerland: there the average payout is in excess of €30,000 per claim).

Overseas jurisdictions aside, we need to consider whiplash on its own merits. That, in turn, means looking at case studies. Imagine, then, the following scenario.

A woman is on her way to work with a colleague, travelling in a line of traffic. Suddenly, she has to brake hard because the driver in front abruptly comes to a halt. Unfortunately, her commendable awareness is not replicated by the driver behind her, who collides with the rear of her vehicle. The scenario will be familiar: it happens every day on Britain’s roads.

But if it is commonplace, it is also traumatic. What, for example, if the woman’s car is hit by another vehicle travelling at speed? What if the impact occurs when the woman’s car is stationary but the other car is moving at a low velocity?

I know of many such cases. The pattern is often the same as in the imagined scenario above. The driver whose car has been hit develops severe pain in the back of the head. Stiffness in the neck is also evident. Then come the headaches, nausea and dizziness – and they continue for a long time. In other words: the classic symptoms of whiplash. Sometimes, the victim will attend the minor injuries unit of his or her local hospital; thereafter, the local GP and an orthopaedic consultant. The medical profession will be unanimous in diagnosing injury. And yet, when it comes to making a claim for compensation –for injuries sustained through no fault of the victim’s – hurdles appear at every turn. Insurers dispute the speed, weight and direction at which the miscreant driver’s vehicle was travelling; they argue over the latent injuries that can arise; they hire expert witnesses to contend that the victim has manufactured his condition. They do anything but accept that the victim has suffered a genuine and serious injury.

Moreover, accidents are, by their very nature, traumatic. As I have previously written, cutting edge research indicates that even if physically verifiable trauma does not accompany whiplash, it is no less debilitating for its sufferer – precisely because of the psychological factors inherent in the kind of incident that leads to whiplash.

I am looking forward to a conference hosted by the Association of Personal Injury Lawyers on 15 May, whose title is ‘Whiplash: The Evidence’. I hope that in examining whiplash further, we will realise that the present system – which allows insurers to present evidence to challenge claims – is a fair and reasonable one.

It is neither fair nor reasonable to package up whiplash as a facet of ‘compensation culture’, so that victims become unable to claim compensation for genuine injuries that are not their fault.

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