2020-05-14

Proving whiplash is a right pain in the neck

Claims for compensation following involvement in a minor road traffic accident or fall often include whiplash injuries.  Whilst there are very many genuine whiplash injury claims, it is also an area which is subject to repeated exploitation by fraudsters. With injuries often subjective in nature, the door is open for the dishonest minority to fabricate or exaggerate.

...an immense amount of medical literature remains devoted to ingenious attempts to find, explain and prove a physical or disease basis for whiplash symptoms. When it is not complicated by the presence of doctors and lawyers, whiplash is an injury of little consequence.

Andrew Malleson, Whiplash and Other Useful Illnesses (McGill-Queen’s University Press, 2002)

It must be remembered that the onus is on a claimant to prove their claim. In doing so, a claimant will attend an examination with a medico-legal expert who will inevitably provide an opinion that all of the symptoms complained of by the claimant are directly attributable to the index accident. The NHS website says that this injury usually gets better within two to three months, but often the medico-legal expert will offer a lengthy prognosis, sometimes as much as 18-24 months, for seemingly minor road traffic accidents. 

...whiplash is an injury requiring much skilled medical attention and generous compensation. You must also remember that whiplash forms the basis of a multimillion-dollar industry from which many people make a living. The industry relies on the public’s acceptance of whiplash as an injury with catastrophic consequences.

Andrew Malleson, Whiplash and Other Useful Illnesses (McGill-Queen’s University Press, 2002)

But what exactly is a whiplash injury and how can a claimant prove it?  First, let’s look at what a whiplash injury is.

Whiplash is a neck injury caused by the sudden movement of the upper body, often a result of a road traffic accident or from a fall. Whiplash occurs because of a sudden extension and flexion. When one car drives into the back of another the necks of the occupants are forced in one direction and then the other direction. 

Symptoms might include neck stiffness, pain, headaches, dizziness, tenderness, a burning sensation and muscle spasm.  All but one of these symptoms are beyond objective testing and there is no way of medically testing if a person has those symptoms other than to ask them.

A muscle spasm is different as there is, arguably, an objective test. A muscle spasm is an involuntary contraction of a muscle and the muscle may twitch or feel harder to the touch. 

On occasion a medico-legal expert will report a muscle spasm found during the examination of the claimant. If you are dealing with a suspected fraudulent claim you may conclude that a muscle spasm is an objective sign of injury and cannot be feigned, meaning that the claimant must have been injured in the accident. This is an argument sometimes progressed by those enabling the claim for injury and in genuine injury claims, they may be correct.

However, in Richards & Anor v Morris [2018] EWHC 1289 (QB) (24 May 2018) it was decided that:

A single finding of "spasm" was…an inadequate basis…to find that the Claimants had proved their case.

In that case, the claimants made numerous inconsistent and false representations about their injuries and treatment.  The simple presence of a muscle spasm did not provide the claimants with an easy, or any, route to compensation. 

A claimant’s reporting of symptoms (and other features relating to accident circumstances and factors relating to losses arising) are crucial in determining where a claim is genuine or not. The judgment in Richards goes to this point. All evidence needs to be considered in the round.  

So, even where you might have an objective positive indicator, take the time to assess a number of other factors including:

  • The claimant’s reporting of previous accidents and relevant medical history – do your enquiries reveal the claimant has not been up front with a medico-legal expert?
  • Do the results of your enquiries into the claimant correspond with the limitations reported to the medico-legal expert? This may be time off work, ability to garden, undertaken DIY projects or manage personal care.
  • Does the reporting of the onset of pain change as the case progresses?
  • In respect of any GP or medical attention:
    • When did the alleged GP/medical attendance take place?
    • Was this just before or just after the claimant secured legal advice?
    • Might the attendance be for the convenience of the claim rather than meaningful treatment? i.e. to make a record of the event so as to support a claim.
  • Where there is no GP/medical attendance at all, is this in the context of the claimant being a frequent attender?
  • Does the claimant fail to mention this injury in other contemporaneous medical attendances (for other medical conditions/reasons)?
  • What does the GP record say? Is this consistent with the claimant’s reporting of injury in the Claim Notification Form and to the medico-legal expert?
  • Has the claimant had any other medical treatment such as physiotherapy?
    • Are physiotherapy clinical/treatment notes consistent with claimant accounts in GP records and documents presenting the claim to insurers/defendants?
    • Did the physiotherapy actually take place?
    • Was it telephone physiotherapy?
    • Is it supported by an invoice for inflated/administration charges that appear in personal injury claims, but are rarely seen in private physiotherapy charges when no claim is being made?

There are of course many very genuine claims for injury that should be quickly validated and paid, but whiplash injuries are a credit card that has been 'maxed out'. In the context of claims injuries, prognoses are longer than in clinical settings, treatments are longer, more involved and more expensive, and, the impact on day to day life is more severe.

The lack of objective confirmation of injury continues to make this injury more susceptible to fraudulent claims (whether fabricated or exaggerated). Taking into this all into account, it is important to remember that a claimant must prove the claim and not to assume that a claimant was injured based on a single finding of muscle spasm. The courts will consider the wider evidential picture, when painted properly.