To suffer a whiplash injury when involved in any form of contact between two vehicles does not require a high travelling speed. As has often been found in numerous whiplash claims reports, a collision at speeds below even 5 mph can still result in a sufficient force of impact to cause the head of a driver or passenger to be involuntarily jerked forwards, backwards or sideways in their seat.
While over a third of whiplash injury is caused by a collision with a vehicle turning right and 1 in 10 from a side impact, 5 per cent is the result of a sudden and extreme manoeuvre taken in reaction to another driver’s unsafe overtaking.
Seatbelts and head rests
Apart from the standard wearing of the seat belt, to date the best form of in-car protection was to always adjust the car head rest each time to ensure it is correctly positioned at head level before beginning a journey.
Seat belts are designed to stop the torso from moving forward more by just a few inches under a collision impact but not all head rests are fully shaped to properly restrain the head and neck from a sudden jerking forward or sidewards under an impact force.
In other words, the human neck is fragile enough for the soft tissues to sustain serious injury from the most minor involuntary reaction to vehicle contact. The cervical area of spine, neck and head are all too vulnerable to disruptive movement causing whiplash and other disabling injuries of the muscles, bones or nerves.
Whiplash Injury Lessening (WIL) Concept Seat
In recent years, it has been the car makers who have come up with design and technology solutions to increase vehicle safety. In 2012, the Toyota brand introduced the Whiplash Injury Lessening (WIL) Concept Seat to the Camry and Lexus CT models.
Because whiplash is caused by “the differential motion of the torso and head” under the impact force in a collision, the principle of the WIL seat is to keep those two parts of the body “at exactly the same speed” during the forward motion caused by a rear-end collision.
Two part response
Designed as a two part system, the first part involves the rear of the seat, which cushions the section of the spine that runs through the torso, and is built to compress during the forward motion of the collision, and reduce the pressure that propels the torso forward.
The second part of the system focuses on an interactive headrest. As the lower part of the seat pushes against the torso, it also sends a signal to the headrest telling it to slant upward at a diagonal angle (the position of the neck when the s-shape occurs. At this point it then pushes the head forward at exactly the same rate as the back of the seat is forcing the torso forward. As a result of the combined seat system, the spine maintains its normal shape during a collision and not forced out of alignment, which could mean a reduction in a potential whiplash injury.
While whiplash injury may not be completely eliminated, early results appear to indicate that the severity of the injuries has lessened on car models fitted with the system. As WILL technology becomes available to other models and car manufacturers, more whiplash injuries can be prevented in future car incidents.
Barely one month has elapsed since the introduction of government changes to the Small Claims process and claims for whiplash. Now figures have come to light, which seem to contradict the claims by newspaper headlines, insurance brokers and government spokesmen, alike that Britain is the “whiplash capital of the world.”
Partly as a result of the expressed concern over seemingly record levels of whiplash claims in recent years that an impetus was seen to be given to driving forward changes the government introduced in April. However, it also now appears that figures for whiplash compensation placed before a transport committee enquiry at the end of 2012 by Association of Personal Injury Lawyers (APIL) show that “claims are at their lowest levels since 2008/09.”
Five year low…
According to the APIL, a freedom of information request they submitted to acquire the figures reveal there were 488,281 whiplash claims in 2012/13 – a reduction of 60,000 on the previous 12 year, and the lowest level for five years.
Apart from fraudulent claim hot spots grabbing press headlines, and far from a surge in claims, the opposite seems to have been more likely, overall. In 2011, it was reported that certain areas of the UK – mostly cities in the north west of England, including Birmingham, Liverpool and Manchester, and parts of east London – seemed to suffer more whiplash injury and a higher percentage of accidents involving bodily injury than anywhere else.
The Whiplash Report, which was published in November 2012 – at the same time as transport enquiries into whiplash claims were being made – reveals that 8 in 10 of those involved in a car collision and who make a claim for whiplash prove to be genuine. In addition, 4 in 10 people who suffer whiplash injury never actually claim compensation, according to a 2012 report by the Institute and Faculty of Actuaries (IFA).
It’s also probable that some of the basis for the reaction may be due to market research, which found that one in every 100 people said they had experienced whiplash in the previous 12 months and around 1 in 3 were then encouraged to seek the advice of whiplash solicitors.
There’s every likelihood that as news of the proposed government changes to small claims and consequently, whiplash claims, became known in autumn 2012, many genuine casualties of vehicle incidents with a potentially serious whiplash injury have felt unable to come forward and seek compensation.
Since the changes came into force in April it’s also possible that individual sufferer are simply holding back to see how other cases are dealt with under the new arrangements before deciding if it’s worth their while entering a claim for whiplash injury.
Reasons given for caution…
There could be many reasons for taking a more cautious approach, such as not wishing to be thought of as a fraudulent claim or believing that apart from shock and possibly a slight bruise or two, no real physical harm occurred. Recent European research found that nearly 3 in 10 of drivers travelling just at 2 mph and early 4 in 10 at 5 mph can still experience whiplash associated disorder symptoms when involved in a collision or sudden manoeuvre.
It’s also true that many people know that most compensation claims have a time limit within which to enter a claim. For whiplash injury the time limit for adults over 18 is three years.
Sensible reasons for an earlier claim…
Yes – a next-day knock on the whiplash solicitors door may look highly suspicious. But there are sensible and practical reasons why those involved in a vehicle incident should not wait for a lengthy period of time to pursue a claim, no matter how slight they imagine the actual physical damage or after- effects to be.
While research has found that around 2 in 5 of all victims of whiplash never come forward to claim compensation, latent whiplash injuries can be still diagnosed and proven in some 1 in 5 individuals for up to a year or more.
However, memory of the incident is likely to be more fresh with the claimant and any relevant witnesses the earlier the claim process begins. It can be financially more beneficial as a payment could significantly help with loss of earnings while off work in the immediate aftermath of the incident.
When reactions are not straightforward…
Whiplash injury and individual response are not always straightforward. Delayed reaction and development of symptoms can often mean many more vehicle drivers or their passengers who have been involved in a collision weeks or even months previously may not even know they are suffering from whiplash injury until the onset of persistent certain symptoms, such as excessive tiredness.
Whenever any form of car incident is experienced involving sudden braking or contact with another vehicle, it is always recommended to seek advice earlier rather than later to present the best possible case for compensation.
The government changes to Small Claims introduced on 1st April altered the way that a solicitor’s ‘no win no fee’ arrangement with their clients would operate, with specific impact upon future compensation for a whiplash claim.
There’s no doubt that as news of the intended changes become known, and in the aftermath of their introduction, many of those who have been involved in a vehicle collision and suffered a whiplash injury may be wondering if it really is worth their while now to seek a claim for whiplash.
It should be remembered of course, that the new legislation came to pass because of the rising number of fraudulent claims, against which the new procedure is intended to significantly reduce. Genuine claimants with tangible medical reports and qualified supporting evidence should not be deterred from seeking entitlement to pursuing their entitlement for whiplash compensation.
Prior to 1st April change, the ‘no win no fee arrangement’ allowed whiplash solicitors and law firms to recover their costs from the defendant if their case was lost. It meant that that the claimant who was successful in their claim would always receive 100 per cent of the compensation settlement.
From 1st April the ‘success fee’ is no longer recoverable from a losing defendant. Instead, up to 25 per cent of a successful claim settlement can now be deducted to cover the cost of paying the fee of the solicitor acting on behalf of the claimant. The transference of legal costs to be paid by the victim rather than the individual who caused the accident is intended to reduce fraudulent claims.
Of course, the principle of ‘no win no fee’ still applies to when a claim is not successful – a losing claimant will still not have to pay the solicitors costs.
In addition to no longer being able to recover a solicitors success fee from the defendant when the claim is won, it is also no longer possible to recover the After The Event (ATE) Insurance policy premium ( designed to protect against the risk of paying a defendant’s fee in certain specific circumstances).
However, the good news for genuine whiplash claimants is that as a result of the changes, and to offset against undue loss, an additional payment of 10 per cent is also allowable as compensation for the personal injury received.
Every case is always likely to be unique and it’s important that whiplash sufferers should seek professional legal advice to understand the extent of their own compensation entitlement.
European medical research has found that more than three quarters of vehicle drivers or their passengers who are involved in a vehicle collision “displayed no symptoms of their injury within three months” of an accident taking place.
Many more individuals who have been involved in a collision can suffer a delayed reaction and the onset of symptoms, and may not even know they are suffering from whiplash injury until suddenly becoming aware of apparently, unrelated and common everyday symptoms, such as excessive tiredness.
As many as one in five can continue to suffer symptoms of whiplash of varying severity for more than a year. Whiplash solicitors often see statements in a whiplash claim that indicate many unsuspecting sufferers were taking frequent and extended periods of time off work because of vague neck or back aches and pains not recognised as relating to a driving incident.
The soft tissues of the neck are highly vulnerable to any sudden, excessive sideways movement experienced during a car journey and a whiplash injury does not necessarily have to be caused just by excessive front / rear end collisions or side impact. Even at speeds at between 2 – 5mph, a sudden vehicle incident can still generate a force to cause the head of a driver or passenger to be involuntarily jerked forwards, backwards or sideways in their seat.
The extreme movement will unnaturally stretch the neck ligaments and tendons enough to cause pain, stiffness and even a temporary loss of movement around the affected neck and shoulder area.
When symptoms such as inability to sleep normally or reduced concentration and memory loss start to become more apparent and whiplash injury is eventually confirmed by medical examination, the sufferer may have already been taking time off work.
A part of any whiplash compensation claim considered will comprise a payment for special damages, which accounts for those expenses incurred as a direct result of a whiplash injury sustained from an incident in a vehicle. Among the expenses taken into account will be loss of earnings – including overtime money – due to time taken off work because of inability to carry out normal duties.
To help with supporting this aspect of a claim, documentary evidence in the form of payroll advice ( possibly up to 6 months) will be required to enable a calculation of the loss of earnings to be made. The amounts will be added to any other special damages sought such as travelling expenses for medical appointments or a claim for sick pay if not provided by an employer.
A survey conducted in 2012 by the Association of Personal Injury Lawyers (APIL), found that of four thousand people canvassed, around one per cent said they had suffered a whiplash injury in the previous 12 month and around 2 in 5 of those who had experienced whiplash never actually claimed compensation.
On 1st April 2013, the financial limit for a Small Claim was increased from £5,000.00 to £10,000.00. However, the limit was raised to just £5,000 for those individuals who pursue a claim for whiplash in a Small Claim court, and are also presented with further obstacles if they wish to claim for a greater amount at a higher level.
The Ministry of Justice now require that the degree of whiplash injury is to be a determining factor in whether a whiplash claim will be heard in a Small Claims court. As a result, whiplash injuries considered minor, and may even be considered safe enough to be ignored, could lead to some claimants to being undercompensated.
Yet it is well known that whenever a vehicle is involved in a collision, no matter how slight, both the head and the body are subject to a sudden and overwhelming braking force, which causes neck distortion and stretching under the impact. As result, not only are there likely to be severe injury affecting the soft tissue and muscles of the neck, common in whiplash injury, there is every possibility of much more serious skeletal, nerve or artery / vein damage.
In addition, the body’s reaction is not always immediate and whiplash symptoms – not so readily recognisable, even by those who are involved in the accident – may only emerge days, weeks or even months after a collision, and could be considered negligible ( or even undetectable) at an early medical examination.
Under the new legislation introduced in April 2013, to qualify for being considered for whiplash compensation, the following three conditions are being introduced to provide supporting evidence for a claim:
Two Medical Reports – Immediately following a vehicle collision and collection of evidence by the police, a legal representative, such as a whiplash injury solicitor will need to be contacted to arrange for two examinations to be carried out by medical professionals. The strength of the subsequent claim will be largely influenced by whether both medical opinions agree or differ in any way.
Minimum Speed Verification – To qualify as a whiplash injury, a minimum travelling speed of 10km/h at the moment of the collision is imposed. Any injury below this threshold cannot be verified as a whiplash injury unless advised otherwise by two medical professionals, and also thoroughly investigated by an independent medical board.
In-Car Monitoring – The presence of in-car monitoring equipment, which was switched on and fully functioning is almost certain to be required for providing the necessary proof of speed limits and other contributory factors when determining the faulty party in a car collision.
Despite of changes being proposed for future whiplash claims, any vehicle driver who becomes a blameless victim in a road collision, which causes them to suffer whiplash injury is entitled to pursue a claim for whiplash compensation.
As with a number of other types of injury compensation cases, a claim for whiplash can be awarded against two key areas affecting a victim’s health, wellbeing and individual circumstances, generally classified as general damages and special damages.
Awarded as compensation for the pain, suffering and ‘loss of amenity’ (impact an injury has upon quality or enjoyment of life) the sufferer experiences as a direct result of their whiplash injury. While not life-threatening or even permanent, a ‘before and after accident’ comparison of lifestyle is made.
It is important to note that up to 1 in 5 Acute Whiplash sufferers who experience short -term discomfort and stress as a result of neck pain will continue experiencing debilitating symptoms of a longer term Chronic Whiplash condition. Consequently, around three quarters of whiplash victims can take a year to regain their normal health and may not fully recover for a period of two years.
Evaluating the extent of the effect of the injury will mean more pain and suffering can directly relate to an increased amount of general damages awarded. An independent medical report, which will be required to assess the severity of whiplash, and the current and probable future impact upon future life that determines an appropriate compensation figure to reflect ‘general damages.’
The distinctions between a neck injury and the potentially more serious whiplash injury should never be underestimated, and will always require diagnosis by a doctor’s full examination.
Damages claimed for the second category are based upon the severity of financial loss encountered as a direct result of whiplash injury and are intended to restore a previous financial position before the accident took place. Therefore, losses which can be claimed can include loss of earnings, medical treatment, and accompanying treatment travelling expenses and the cost of any specialist equipment required. The special damages figure is then added to the sum of general damages to create a total whiplash compensation settlement amount presented to the liable party.
Changes to the small claims process introduced in 1st April 2013, means the threshold for a ‘small claim’ will increase (in non-personal injury claims) from £5,000 to £10,000 with a likely impact on future levels of whiplash compensation claims. There are also plans to introduce new, independent medical panels to improve diagnosis of whiplash injuries, with which, claimants are expected to fully comply.
While it may be argued, and rightly too, that in a few highly publicised examples the rise in fraudulent claims in recent years needed to be addressed, the Association of Personal Injury Lawyers APIL reported in their Whiplash Report 2012 that of the 522 people who claimed to have suffered whiplash “at some point in their life”, only 321 – or 61 per cent – had actually pursued a claim for whiplash injury.
The APIL Report also looked more closely at some of the developments in road traffic, car design and even seatbelt legislation, which they suggest would have contributed to the increase in car collisions with a higher incidence of whiplash injury.
Road Congestion and Lower Speeds: APIL relate how “the UK has 79 per cent more vehicles per kilometre of road compared to the European Union average.” They argue that busier roads and congested towns would naturally lead to a higher incidence of “low velocity accidents with relatively minor injuries” in contrast with fatal accidents resulting from high speed accidents.
Improved Vehicle Build: Safety robustness of vehicle body design and engineering has also undergone a transformation over the last thirty years resulting in the reduction of the number of serious injuries and an increased ability of drivers and passengers to more likely survive a potentially fatal impact. At the same time, there has an increased capacity to more easily receive a whiplash injury because of the more powerful forces being transferred in these types of collision at the same speeds. APIL point to the t Department for Transport road casualties figures which show that “the proportion of car occupants with minor injuries was higher in the newest cars, suggesting less severe injuries for occupants of newer cars. “
Seat Belt Law: Finally, APIL report on a number of studies which strongly suggest that the introduction of seat belt legislation in 1983 led to an increase in neck sprains and soft tissue injuries to the lower part of the neck.
At the outset, a claim for whiplash must be able to “assign blame” to another party, usually another vehicle driver, but the driver can also be held to blame by an accompanying passenger. Proving liability may not always be straightforward and a further potential obstacle to obtaining whiplash compensation may occur if the accident is a “hit and run” where the liable driver fails to stop to exchange details, as required by law.
As a consequence, some whiplash victims simply feel that without any driver details, such as the registration number, an insurance claim will be rejected or going through the process of a whiplash claim may be a waste of time. It has been estimated that around 40 per cent of those who suffer a whiplash injury simply never make themselves known to make a claim.
The Motor Insurers’ Bureau (MIB) scheme, introduced in the UK in 1946, provides assistance for victims of accidents caused by uninsured and untraced drivers, including victims of hit and run driver accidents. According to government data, between 1997 and 2006, hit and run drivers were responsible for more than one in ten road accidents, coinciding exactly with the 1 in 10 car accidents, which involve uninsured drivers.
Under the Road Traffic Act 1988, every insurer dealing with compulsory motor insurance is required to be a member and subscribe to the MIB.
If the identity of the liable driver cannot be satisfactorily verified, the next step is to make a claim through the Motor Insurer’s Bureau. Although the claims process differs from the standard procedure, a whiplash injury solicitor can still provide expert guidance and support at every stage.
Even after the liable driver is found and can be positively identified, it will still be necessary to be able to prove that the actions (or lack of action) of the driver actually caused the incident, which was directly responsible for the resulting whiplash injury.
Medical reports will also be needed to show the extent and consequent impact whiplash injuries have made upon a claimant’s quality of life and recovery prospects. Research has found that 1 in 5 of those involved in a vehicle collision actually suffer from the continuing symptoms of whiplash for more than one year.
In April, the Ministry of Justice (MoJ) plans to re-instate the no win no fee whiplash claims system.
Pressure to act has been building ever since revelations over significant numbers of fraudulent claims were splashed across the British press alongside news that there had also been a 60 per cent increase in road accident injury claims since 2006.
Yet despite an estimated 1,500 whiplash compensation claims being made in the UK every day, around 40 per cent of whiplash sufferers are known to have never actually made a claim for whiplash, according to the Association of British Insurers (ABI).
The Whiplash Report, which stated that 8 in 10 of people who make a claim for whiplash are actually genuine, was released in November 2012. The Report coincided with the announcement from Justice Secretary Chris Grayling that a consultation process, beginning in December 2012, was aimed at creating a better system for insurers to determine genuine from fraudulent claims.
The consultation, which closed on 8th March, would look into introducing new, independent medical panels to improve diagnosis of whiplash injuries and options to allow more whiplash cases to be challenged in the small claims court. The aim is to ensure that while genuine claims would still proceed, those claims found to be “exaggerated, misrepresented or fraudulent” would be ‘robustly’ challenged.
Responding to the introduction of a more effective claims evaluation, the ABI said that the new system “will help genuine claimants get paid out quickly and reduce the scope for fraud.”
Proposals called for would fall in line with the current system in Germany, under which, all whiplash claimants are required to produce two medical reports and evidence of a 10km/h (6.25mph) threshold, and in-car monitoring via SmartBox technology. Claimants would also be expected to work with the MOJ’s independent medical board in order to receive the full compensation.
A further proposal is to raise the limit on cases that can be pursued through the small claims court from £1,000 to £5,000, in bid to reduce the costs incurred by insurers when challenging claims.
However, one of the changes that will be taking place in April is a “rebalancing” of the no-win no-fee system, whereby, losing defendants will no longer have to pay a success fee or legal insurance premium to the claimant’s lawyer.
The changes are taking place within the wider context of substantial reforms to civil litigation funding and costs in Part 2 of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012.