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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