Whiplash epidemic: Where is the burden of proof?

12 Jan 2012

One can be forgiven for thinking that the Transport Select Committee simply does not understand the basis of personal injury claims. The BBC reports them saying “… claimants should have to prove they have suffered a whiplash injury.” But they already do – so what is proposed?

Fewer people are injured in cars and major injuries to occupants have been reduced by more solid cars with impact protection and air bags but a person "saved" from grave injury is likely still to have some injury. Why must there be a different, presumably greater, burden of proof just because the injury is less obvious?

Whiplash is not modern and its prevalence is not a new concern. In the late 19th century the expression "train wreck neck" was coined in response to diffuse soft tissue problems in the neck after train crashes. In 1987 the Quebec Task Force was set up in Canada to assess the scale of the problem in Canada and produced what is still a seminal work on the topic.

Whiplash is a real injury. Those injured are entitled to proper compensation in exactly the same way as any other genuinely injured person. They shall only recover compensation if they prove their case.

The problem is not the lawyers. Consecutive governments have changed the litigation field with CFAs (No Win No Fee agreements): First the Conservative government of the 1990s, followed by the Labour government imposing changes, and now the current government quite rightly wants to ensure litigation is conducted properly. It is the priority that is wrong. By all means make it harder for the hangers on to earn their cut, but do not deprive injured people of their proper right to compensation.


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