Whiplash and the new backlash compensation claims

Whiplash is the term given to a broad range of symptoms caused by an injury to the neck. It is commonly associated with forced movements to the neck and is caused, for example, by motor vehicle accidents. It is very common and insurance companies generally pay out a fixed amount of money for claims of whiplash from an injured individual.

The most common symptom of whiplash is back pain which may be lower back pain or, most commonly, pain in the neck or shoulders.

Whiplash, indirectly, affects almost all of us through motor insurance premiums. The increased frequency of whiplash claims has led to spiralling costs for insurers and this is being passed on in the form of ever higher quotes and premiums.

The UK government has started to take notice of this and is now pushing for changes to insurance practice to reduce the number and ease of claims for whiplash. Although injury lawyer will argue this is a bad thing, how justified are the claims for compensation?

Whiplash is essentially a self limiting condition from which almost all sufferers will recover with minimal treatment. Evidence has shown that the best treatment is often no treatment. For example, wearing a soft collar may be useful in the first few days and reduce neck pain but it may actually prolong symptoms by taking work away from the muscles that need to heal back to normal function. Sufferers who have gone on to have back surgery will have either had underlying damage to the back before their injury, or sustained a more serious injury such a spine fracture that should arguably be classed separately to ‘whiplash’ and are exceptionally rare.

To give you an idea of the spectrum of symptoms, whiplash severity ranges from a feeling of pain or stiffness in the neck and shoulder, to decreased movements in the neck, to weakness of arms or legs, and may even include injuries to the spinal cord or fractures to the bones of the spine. The more severe the symptoms the longer the duration of the symptoms will be. Claims for compensation for injuries to the spinal cord or fractures are likely to make separate to a simple ‘whiplash’ diagnosis and should therefore, probably, be considered under a different banner and the ‘self-limiting’ argument does not stand as strongly for this group although the prognosis for most remains good.

People will disagree on whether a painful condition which often affects lifestyle but is rarely permanent is worthy of financial compensation. Should there be a minimum duration for the symptoms before a claim is approved? Should a specialist doctor make the review and diagnosis? Currently any doctor can diagnose whiplash and there is little in the way of criteria for diagnosis. As the diagnosis is often based on ‘symptoms’ it could be considered to be subjective – it cannot be proven on an x-ray or blood test, for example. For the same reason it can be difficult to defend a claim for compensation for the injury as it can equally not be ‘disproven’. This has led to a fixed payout culture with few legal challenges.

The UK government report comes from the House of Commons Transport Committee which is recommending a higher threshold for claims and discourages the practice of many insurers in seeking whiplash payments from rivals in the case of a claim. There have been allegations of insurance companies passing the details of an accident and individual involved to injury lawyers to encourange a claim and also that the insurer may in turn benefit financially.

The government is applying pressure on insurers now and has threatened legislation if changes to current practice do not occur. Is this a good thing? That is open to debate with powerful parties on both sides of the argument ready to set their case which may ultimately be settled in the courts and parliament.