Wednesday, 2 May 2012

The whiplash bandwagon is careening out of control


Once again the whiplash bandwagon has rolled into town – and once again plenty of people have hopped aboard. As Transport Secretary Justice Greening and Justice Secretary Kenneth Clarke are expected to announce whiplash claims reforms today, at what is the second summit of motor insurers in Whitehall (the first was held on 14 February, with no less a host than David Cameron), the great, the good and the not-especially-well-informed have sought to make their views on whiplash known.

Speaking before the summit, Justice Minister Jonathan Djanogly told the Radio 4’s Today programme: “I think that people do suffer from neck injuries and that it’s important to have a compensation system that allows valid claims to go through. But I do think, when we hear that there is an average of 2.7 whiplash claims for every accident in this country, that the system is being misused.”

Mr Djanogly went on to articulate the government’s view: that all claims for whiplash should go before independent panels of doctors. “At the moment they are normally referred to the claims managers’ panels of doctors,” he said. “We also think we need to have tougher guidelines over doctors’ diagnosis of whiplash in the first place.”

The AA was quick to wade into the debate. It declared that reform of the injury claim system “cannot come soon enough”. Simon Douglas, director of AA Insurance, said: "I hope that today's Government announcement will see a tight timescale applied to reform of the civil litigation which, at present, encourages people to make a claim regardless of how serious their injury is or even if they have not suffered injury at all."

While Douglas also called for a clamp down on cold-call claims management and personal injury firms (and, into the bargain, noted that the present system was “dysfunctional”) the essential thrust of his comments was to echo the government’s oft-enunciated, always unthinking line about “compensation culture”. Clarke himself happily took up the baton, to declaim that: “It is scandalous that we have a system where it is cheaper for insurers to settle a spurious whiplash claim out of court than defend it, creating rocketing insurance premiums for honest drivers.”

In fact, what is truly scandalous is the absence of any will on behalf of the government to entertain a serious debate about whiplash. The received wisdom is to assume that whiplash is fabricated, that anyone making a claim for compensation is inevitably a fraudster. This is a grave slur on the majority of people who are unfortunate enough to suffer whiplash in a motor accident. It could be scotched if the government were to invite solicitors who represent whiplash victims to attend today’s summit, and others like it, but instead the government seeks only to discuss the matter with those who have a vested interest in annulling, as much as possible, the chance of anyone bringing a claim.

More to the point, there are those on the government’s badly piloted bandwagon who contend that whiplash claims should be barred where the impact occurs below a certain velocity. This again is wrong. Although the person experiencing whiplash in such circumstances – for example, when stationary in traffic and ‘rear-ended’ by another vehicle – may not have overt signs of injury, the possibility of soft tissue damage to the overstretched ligaments of the neck has been well documented. So, too, is there an increasing array of cutting edge medical analysis to the effect that the psychological effect of such an accident may be sufficient to create the symptoms of whiplash.

But from a lawyer’s perspective, there is a fundamental issue of basic negligence law. At law school we learn of the ‘eggshell skull principle’. This means that a person committing a wrong must take his or her victim as they’re found. If, then, a victim is extra vulnerable – perhaps because of a pre-existing medical condition, such as an operation to the cervical spine which sees fusion of miscreant discs – then the wrongdoer has to account for harm that might not ordinarily have been foreseen. 

The government’s endeavours to introduce a velocity threshold would do away with the eggshell skull principle – itself a legal doctrine that has held water for over a century. The idea is emblematic of the wrong-headed approach currently being taken to the issue of whiplash, and it is yet more evident when we stop and remember that the current system already allows for the appointment of independent medical experts to assess the veracity of whiplash claims.

The whiplash bandwagon is in danger of being driven so badly that accident victims have little or no chance of redress. That may be good news for the insurance industry – and the many government ministers who have a financial stake in it – but it’s a poor return for the man in the street.