The drive to dismiss whiplash

The whiplash bandwagon has again rolled into town and many have hopped aboard. As Transport Secretary Justine Greening and Justice Secretary Kenneth Clarke announced claims reforms last week (2 May) at what was the second summit of motor insurers in Whitehall, the great, the good and the not especially well-informed sought to make their views on whiplash known.

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

Djanogly went on to articulate the Government’s view: that all claims for whiplash should go before independent panels of doctors.

The AA was quick to wade in. AA Insurance director Simon Douglas said: “I hope today’s Government ­announcement will see a tight time-scale 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 haven’t suffered injury at all.”

He called for a clampdown on cold-call claims management and personal injury firms, noting that the present system was “dysfunctional”.

Clarke happily took up the baton, saying: “It’s scandalous that we have a system where it’s 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. The received wisdom is to assume that whiplash is fabricated. This is a grave slur on the majority who are unfortunate enough to suffer whiplash in a motor accident.

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 is wrong. Although the person ­experiencing whiplash in such ­circumstances - for example when stationary in traffic and ’rear-ended’ - may not have overt signs of injury, the possibility of soft tissue damage to the overstretched ligaments of the neck has been well-documented.

From a lawyer’s perspective, there is a fundamental issue of basic negligence law. At law school we learn of the ’eggshell skull principle’, where a person committing a wrong must take their victim as they are found. If a victim is extra vulnerable (perhaps because of a pre-existing medical condition), 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, which has held water for more than a century. The idea is ­emblematic of the wrongheaded ­approach currently being taken.

The 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 is a poor return for the man in the street.