Do We Need a More Stringent Approach to Whiplash Claims?

1.Introduction & Aim

The mechanism of whiplash injury was first described in 1928^[1]. The subject seems to have been as contentious then as now. The injury, it has been thought, involves an accelerative injury to the neck where the force of the collision causes the head to move forward rapidly, and then there is a backward movement in which the neck exceeds its normal limit of movement (hyperextension). It was expected that the introduction of head restraints would reduce the incidence of whiplash, but it would appear that this is not the case.. The Quebec Task Force on Whiplash Associated Disorders called for further research. Research in the USA suggests that the mechanism of the injury is that in the early micro seconds of the accident the neck forms an S shape, with flexion of the upper part of the neck and hyperextension of the lower part, and that in the next few microseconds the neck is extended but not hyperextended. It is the S shape formation of the neck that, it is suggested, causes the injury^[2].

The insurance industry is facing a global cost in excess of £700 million per annum dealing with claims. According to the Association of British insurers, for the period 2001-02^[3] there were 3.2 million private and 1 million commercial motor claims, with 347,000 successful claims recorded, over 80 per cent of which were classified as whiplash or as associated disorders. Typical damages were £2,000/£3,000^[4] plus legal costs and expenses, giving an average cost per claim of £4,500.

This assignment will look at the legal principles surrounding claims for whiplash then discuss some of the current problems with the law, considering the problems faced by the Motor Insurance Bureau and considering why whiplash figures are different in countries where no civil system of compensation exists. This assignment will then consider some of the potential solutions to the problem including a suggestion that judges take a more sceptical approach to whiplash injuries. It will be concluded that this is not the answer as many of these claims are relatively low value and a very high percentage of these cases will never make it to court. The Norwich Union scheme will be considered and their delegated authority scheme, it will be argued that this is also not a sensible solution to the ever increasing amount of whiplash claims. It will be argued that the reason why whiplash claims are so prevalent is because so many people have access to justice under their legal expenses insurance policies and as a result of the growing amount of conditional fee agreements. It will be concluded that in order to curb the number of persons making claims for whiplash a more stringent formula should be applied to the legal expenses insurance policies. It will also be argued that both Claimant and Defendant solicitors need to be alert to the problem and take steps to eradicate fraudulent and exaggerated claims.

Chapter 2 – Law of Tort

2.1Duty of Care

The British courts did not recognise the existence of a general duty in tort imposing liability for careless behaviour across a range of situations and relationships until the 1930s. The turning point was the decision of the House of Lords in Donoghue v Stevenson^[5]. Prior to the decision, legal liability for carelessness was clearly established only in a number of separate, specified situations, which lacked a unifying principle. A duty to take care was attached by law to certain traditional categories of status, as in the case of a duty owed to a customer by an innkeeper or common carrier, or the duty of an artisan to use the customary degree of skill and care in his work. Other situations which give rise to a duty of care without the need for a specific promise or undertaking included the holding of certain public offices and the bailment of goods^[6]. Road and rail accidents and maritime collisions caused by carelessness could also lead to liability in tort, although in may such cases legal responsibility was limited by the operation of the defences of contributory negligence and consent.

The situation changed in the case of Donoghue v Stevension where Lord Atkin addressed the question of how to formulate a “general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances”, in the following terms :

“The rule that you are to love your neighbour becomes in law: You must not injure your neighbour and the lawyer’s question: Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question^[7]”

Fault, in this sense, is at the basis of negligence liability; the claimant has to show that the defendant’s behaviour was careless. Damage is also an essential requirement, in negligence the claimant must prove that he sustained a loss or injury as a result of the defendant’s negligence.

The question whether a duty of care exits in a given situation is a question of law upon which the appellate courts are the final arbiters. In Donoghue v Stevenson Lord Macmillan asserted that the “categories of negligence are never closed^[8]”

2.2Breach of Duty

The issue of breach of duty is concerned with whether the defendant was careless, in the sense of failing to conform to the standard of care applicable to him. The level at which the standard is set is a question of law, but this question is posed in the most general terms. In Hazell v British Transport Commission^[9] Pearson J said that:

“the basic rule is that negligence consists in doing something which a reasonable man would not have done in that situation or omitting to do something which a reasonable man would have done in that situation, and I approach with scepticism any suggestion that there is any other rule of law, properly so called, in any of these cases.”

The standard of the “reasonable person” – the man “on the Clapham omnibus^[10]” – is that of the ordinary citizen. The law expects the defendant to act upon “those considerations which ordinarily regulate the conduct of human affairs”. Secondly, the test is objective and, with one or two exceptions such as infants, is said to treat all defendants equally, with the effect that an inexperienced defendant will normally be held to be the level of skill of one with the normal level of experience for the job in question^[11]. Thirdly, as far as specialist defendants – such as doctors or accountants- are concerned, the standard is that of the reasonably competent person in the profession in question or the particular branch of it. In practice this means that the courts defer very substantially to the standards set by and widely observed in the profession itself at any particular time^[12]. Fourthly, the standard of care may be varied to meet special circumstances such as a situation of rescue ore sport^[13].

The standard is therefore one of the “ordinary citizen” and not that of the defendant himself: an especially careful defendant will not be deemed negligent for merely contravening his own higher standards. Conversely, one whose personal conception of what is reasonable fails to match up to that of the court will have no defence based on his subjective belief that he acted carefully. As Landes and Posner put it, “the information cost of determining each injurer’s intelligence and ability to make judgements of this sort would be too great to justify departing from the reasonable-man standard”

2.3Remoteness of Damage

There are of course certain limitations on the liability of a defendant who has caused tortious damage to the claimant. A major limitation on recovery following the decision of the Privy Council in The Wagon Mound (No 1)^[14] is the principle that the defendant will not be liable for a kind of damage which he could not reasonably have foreseen. However, once foreseeability of the kind of damage is established, the extent of loss is irrelevant and the defendant will be liable in full. Where this is the case, it is said that the defendant “must take the claimant as he finds him”, with all his particular susceptibilities. The difficulty here lies in knowing what is meant by the “kind of damage “which the defendant should have foreseen.

In the Wagon Mound (No1)^[15] an engineer on the defendant’s ship negligently discharged a quantity of furnace oil into Sydney harbour, fouling the wharf owned by the plaintiffs and halting repair work on two other ships, the Corrimal and the Aubrey D. After they were advised that the oil could not be ignited, the plaintiffs resumed welding work, but the oil was ignited by a piece of molten metal and the wharf and the two ships were consumed in the resulting fire. The plaintiff’s action for the damage to the wharf failed on the ground that while damage by pollution was reasonably foreseeable, damages by fire was not. The Privy Council rejected the test apparently laid down by the Court of Appeal in the earlier case of Re Polemis under which the defendant was liable if there was a direct ink between the carelessness and the resulting damage. Viscount Simonds said:

“It does not seem consonant with current ideas of justice or morality that, for an act of negligence, however slight or venial, which result sin some trivial foreseeable damage, the actor should be liable for all consequences, however unforeseeable and however grave, so long as they can be said to be “direct”. It is a principle of civil liability, subject only qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour^[16]”

Therefore the decision in The Wagon Mound indicates that the defendant’s liability should be proportionate to his fault. In elevating foreseeability to be a main test of remoteness, Viscount Simmonds was influenced by Donghue v Stevenson and in particular by Lord Atkin’s expressed view that liability should be modelled upon a “general public sentiment of moral wrongdoing for which the offender must pay^[17]”

Another consequence of the decision in Wagon Mound is that if the type of damage suffered was foreseeable, the precise sequence of events by which the injury was brought about need not have been.

Chapter 3 – Problems in Law

3,1Cultural Differences & Statistical Data

Studies have shown the importance of of cultural factors in the differing presentations of whiplash, contrasting outcomes after accidents in different countries. Thus, far better recovery from equivalent accidents when whiplash is involved have been reported in Lithuania than in Canada or North America.^[18]

Most whiplash injuries resolve completely or almost completely. Sometimes symptoms last only a week or two; others resolve over 18 months to two years. A proportion do not resolve and become what is described as “late whiplash syndrome”. These are the claims that present real problems to the lawyers for claimant and defendant.

As there are rarely any clinical signs which can be seen and investigated, it is not uncommon for doctors, particularly those advising the defendant, to deny that the claimant has any significant condition or symptom, or to argue that the symptoms the claimant claims are not related to the accident and are imagined or exaggerated.

The extreme example of this opinion is to deny that late whiplash syndrome exists at all, or to say that it is very rare. Research published in 1996 by H Schrader of the Department of Neurology, University Hospital, Trondheim sought to argue this. The research was carried out in Lithuania. It was argued that, because there is no system of compensation for road traffic injury there, that factor could be excluded. The conclusion was that “. . . chronic symptoms were not usually caused by the car accident. Expectation of disability, a family history and attribution of pre-existing symptoms to the trauma may be more important determinates for the evolution of the late whiplash syndrome.”

The research took two groups: 202 from the records of the police department in Kaunas, Lithuania who had been involved in rear end collisions and a control group of similar size selected randomly from the same place, but age and sex matched. The figures are surprising. For instance, 71 per cent of the accident and 67 per cent of the control group reported neck pain and 53 per cent of the accident victims reported headache with 50 per cent of the control group reporting the same. The researchers pointed out a correlation between the reported incidence of chronic neck pain in the population of Finland (11 per cent) and Norway (14 per cent) and those reported by the accident group (10 per cent) and the control group (8 per cent).

However it was argued that there were many fundamental flaws with the research such as the definition of the symptoms, the method of selecting the two groups, and various other fundamental errors in the research were raised. It was pointed out, for instance, that the rates of chronic neck pain found in Norway had been variously shown in other studies as between as high as 58 per cent and as low as 12 per cent.

Whilst compensation neurosis is a recognised phenomenon it cannot be argued that whiplash does not exist as a condition, or that it is mainly a result of malingering or exaggeration. That would be to accept that a substantial number of clients have persistently and successfully been untruthful with the lawyers involved and with one or more, often several, doctors. In addition, if the condition is mainly exaggerated or made up, it would be expected that the majority of clients alleging whiplash symptoms would recover, or appear to recover, when the litigation is completed. That does not seem to be the case^[19]. In addition, studies have shown that there is no significant relationship between psychological problems following neck injury and proceedings to recover damages^[20]. Finally, the existence of the condition in general, and in particular cases, is confirmed by a substantial body of experienced medical practitioners^[21].

Perhaps different expectations can lead to different experiences for people of different cultures, and to substantially different levels of “real”, rather than consciously exaggerated, symptoms. Those expectations, varying between cultures, have been linked with labelling through diagnosis, opportunity for monetary compensation, and attribution^[22]. The same writers suggested that psychosocial factors will tend to affect both the way an accident victim will behave after the initial injury, and how they perceive, report and attribute pain arising. They have proposed that a diagnosis of whiplash may lead an individual to expect chronic pain and disability in itself. However, it has been suggested that it is very difficult for a malingerer to fake a psychological profile typical of a whiplash patient^[23].

3.2Uninsured Drivers

By way of background to the motor insurance market, in 2002, motor business generated £9,500 million in premium income. However, £9,574 million was paid out (in claims, commission, expenses and changes in reserves) – an underwriting loss of £74 million. This continued the downward trend in the underwriting loss which was £123 million in 2001 and £921 million in 2000. This is primarily as a result of insurers taking corrective action by increasing premiums to more sustainable levels. Although the motor sector has recently moved into a position of profitability (this after a period when even income from investments has failed to cover underwriting losses), future trends will rely on the degree to which claims costs continue to rise relative to premiums, which have been held down by competitive pressures in the market.

Compensation to victims of uninsured and untraced drivers is paid by the Motor Insurers Bureau. The Bureau is funded by a levy on all motor insurers (and ultimately out of premiums paid by the motoring public). The MIB levy for 2003 amounted to £290 million. However, it is estimated that the total cost of uninsured driving is around double this figure. This is because insurers fund some of these claims themselves, including injury or damage caused by drivers of stolen vehicles. The cost of uninsured driving to honest motorists is estimated to be up to an extra £30 on their motor insurance each year.

It is estimated that fraudulent claims submitted to insurers on individual household and motor insurance policies amount to over £1 billion a year. Around 10% of motor claims submitted are thought to be fraudulent.

3.3Standard of Proof

In civil action the claimant is required to prove his case on a balance of probabilities; in so far as proof of carelessness is concerned with the means adducing facts from which the courts may make the necessary inference of a lack of care. If the defendant has been convicted of a criminal offence that may be admitted in evidence in the civil action by virtue of the Civil Evidence Act 1968. This is especially useful in road traffic cases. Once evidence is admitted of a conviction which could only have been secured where the defendant was negligent, the normal burden of proof is reversed and the defendant has to displace the presumption against him. However in certain circumstances the claimant may be able to invoke the doctrine known as res ipsa loquitor or “the event speaks for itself.” This means that in certain circumstances the claimant may raise a presumption of negligence simply by detailing the manner in which the accident or loss in question occurred.

The standard of proof in negligence and indeed in proving whiplash claims is centred around the but for test. This means that the claimant must prove the existence of a casual link on the balance of probabilities, which is taken to mean a likelihood of more than 50 per cent. If the court finds that it was as likely as not that the injury would have occurred without the defendant’s negligence, the action will fail even if there is an admission of carelessness. An illustration of this is Barnett v Chelsea and Kensington Hospital. The action was brought by the estate of the plaintiff, who dies after doctors at the hospital negligently failed to diagnose that he was suffering from arsenic poisoning. The court held that even with a correct diagnosis the plaintiff’s condition was too advanced for the hospital to have saved him.

Chapter 4-Solutions

4.1British Motor Industry

It is suggested that the British Motor Industry could make moves to improve the situation. Research by the motor insurers’ facility at Thatcham has found that more than a quarter of new cars give drivers and passengers inadequate protection from whiplash injury in low-speed collisions. More than 250 models were tested and found to have poor design and unsuitable positioning of head rests.

Insurers estimate that 200,000 people a year suffer whiplash (2,000 with some permanent disability) leading to insurer payouts of £ 1.6bn. Incidentally, recently reported by the US Insurance Institute, the development of an “active” head restraint. This pushes out from the seat, in a crash or shunt situation, giving extra head protection. The report laconically ends: “Despite their proven effectiveness, General Motors, the primary auto maker using the restraints, has no immediate plans to expand their use^[24]”

4.2The Medical Evidence

At the heart of the matter is the insurers’ need for consistency and independent evidence. Unfortunately, from the insurers’ perspective, how can the presence of whiplash and the extent of its effects be objectively proven? The evidence provided is that given by the claimant. Medical reports are completed by general practitioners or orthopaedic surgeons often without sight of the medical records, and are little more than accounts of what the claimant told them coupled with a physical examination of the neck, which will show the current degree of movement but will give no indication of the range of movement prior to the accident.

Symptoms may take up to 72 hours to appear and so the claimant may not have visited the hospital. Often the claimant won’t see a G.P. as it is cheaper to buy over-the-counter medication than pay for prescriptions, although some claimants do attend their G.P. and do take up physiotherapy, etc. to assist in recovery, which can provide corroborative evidence of injury. X-rays are of little use other than to show the presence of pre-existing degenerative changes in the neck. But often the claimant will say they were asymptomatic prior to the accident; the doctor is then called upon to determine if and when the claimant would have experienced the symptoms if the accident had not occurred.

The opinion of an expert witness, must, however, be based on evidence cited in support of conclusions and result from a comprehensive assessment. The structure of the interview, the relevance of areas covered, the recognition of limits of expertise, and the awareness and consideration of alternative interpretations of evidence must be taken into account when the court assesses the weight to be attached to an expert’s report.

Psychological assessment often deals with matters reported by an individual. Thus the individual’s honesty and reliability and the ability of the expert to assess these factors, along with other information presented, are vital to achieving useful assessment.

Reference to relevant research and appropriate use of psychometric and other objective aids to assessment serve to give weight to an opinion.

Review of other sources of information such as medical records, observation of behaviour and consideration of any other expert reports can all be helpful. Extensive and detailed questioning at interview will provide the opportunity to evaluate the validity of the informant’s story^[25]. The development of systemised procedures for review of relevant factors identified in the literature on lying and witness report validity may assist the process^[26].

Unfortunately, the issue is not simply whether someone is “making up” symptoms. Individuals may lie about the existence of some symptoms, but not about others; they might exaggerate, rather than invent, symptoms; and they may even understate their difficulties^[27]. In addition, Resnick^[28] identified “false imputation”, where an individual might endeavour to ascribe genuine symptoms to an unrelated cause.

Rogers suggested that a clinician may use a number of strategies to assist in the detection of malingering; such as looking for existence of symptoms which would not normally be expected by naïve individuals who have not actually experienced a difficulty. Non-discriminant symptom endorsement might also be evident, when an individual claims to have almost all the symptoms the clinician suggests^[29].

4.3Sceptical Judges

It has been suggested that one of the solutions to the problem of the ever increasing amount of whiplash claims is for judges to become more sceptical and more alert to the possibility that claimants could be “making it up” or indeed “exaggerating” there symptoms. This solution is likely however to have any practical effect on the incidences of whiplash claims for two reasons. The first of these reasons is that not many of these cases actually make it to court because of their low value and the Defendant’s decision to pay out and not bear the risk of paying the Claimant’s cost should the matter proceed to court. From a Defendant’s point of view is not economically viable to argue over say £1000.00, the problem with whiplash claims is not that they are high value it is that they are numerous and therefore settlement is sometimes a cheaper option.

The second difficulty with suggesting that judges should be more sceptical in their approach is simply that they are not medics. If the medical expert employed by the Claimant/Defendant is unable to ascertain whether or not the Claimant is exaggerating or indeed “making up” their claim then how can the judge be expected to differentiate between the real and the bogus claims? Furthermore if a suggestion is made that the experts in fact support Claimant ‘s bogus claims then this is supports a notion that expert witnesses should in fact be regulated far behind their overriding duty to the court contained within the Civil Procedure Rules.^[30] Therefore the suggestion that judges should be sceptical does not provide a solution to the ongoing difficulty that arises with whiplash. The answer is not really either for defendant solicitors to become more wise to the issue. The Medical expert as discussed above really does lie at the heart of proving this issue. Or perhaps a more practical approach would be obtain General Practitioner reports. The problem is real one; but the solution is not obvious.

4.4 Norwich Union Scheme

Norwich Union operate a pilot scheme with certain solicitors operating in the legal expenses insurance arena. They provide the solicitors with delegated authority , so for example they will allow them to obtain medical evidence and as long as the medical evidence does not suggest that the claim settle for more than a specified amount they can settle the clients claim. There are different delegated authorities for different items of special damages as well as general damages. This in conjunction with the predictable fees initiative (effective for accidents after 2003) seeks to reduce the cost of solicitors fees that are paid. The other rationale for this scheme is that the money is made available to the Claimant much sooner. One could argue if you were a malingerer and you were offered say £1000 straight away with no further questions or investigation then you are likely to take this and discontinue. These solutions again, whilst they are helpful do not settle the root cause of the matter. This does not prevent people from claiming when they have no claim to make. It is true that it will shorten the length of the life of the claim, but if it was that easy to do it once – would they not do it again.

One can think of many solutions to address the problem, not all of which are practical. The rise in legal expenses insurance and no win no fee agreements surely has a huge part to play in the rising number of whiplash claims. If the solicitor’s costs do not come out of the pocket of the claimant why should they not make the claim. Before legal expense insurance and conditional fee agreements was the incidence of claimant’s so high? This is not to suggest that such funding provisions are bad ideas, as there were those claimant’s who could not access justice and had genuine claims but it also allows those who do not have genuine claims a route to legal advise. As the insurers create the legal insurance policy to sell their products one could argue that they only have themselves to blame. In short it could be argued that the insurance company have created their own monster. They may therefore be able to curb the difficulty by placing more stringent regulations on their policies, ones that will deter vexatious litigants.

5.Conclusion

It is for the medical expert, who understands the extraordinary