Whiplash injury compensation claims are probably the most well-known of all personal injury claims. This may be because they are the most common type of injury arising out of car or other motor vehicle accidents, being between 65% and 78% of all bodily claims in 2014, depending on which insurance company figures you rely on.
Alternatively, it may be because whiplash compensation has developed a real ‘bad boy’ reputation. ‘Had an accident, not your fault?’ goes the advertising slogan favoured by many personal injury compensation solicitors. With it come images of victims of minor rear-end collisions, leaping out of cars holding their necks, almost as a default reaction. This at least is the picture painted by many in the insurance industry.
Those on the other side of the fence, solicitors – like me – who regularly act for people who wish to make claims for personal injury compensation, would argue that reports of a whiplash epidemic are greatly exaggerated and that to tar all whiplash claimants with the same fraud-tainted brush, does a great disservice to the thousands of people who rightly pursue claims for an injury and associated losses compensation that would not have been necessary but for the negligent driving of another party.
Whatever side of the argument you take, what cannot be denied is that a genuine whiplash injury can be one of the most painful, debilitating and long-lasting injuries that it is possible to have, when considering the more minor/moderate types of injury sustained in non-fault accidents.
What is whiplash?
Whiplash is defined by the NHS website as being;
“…. a type of neck injury caused by sudden movement of the head forwards, backwards or sideways. It occurs when the soft tissues in the neck become stretched and damaged.
Whiplash will often get better within a few weeks or months, but for some people it can last longer and severely limit their activities.”
It is easy to see from this definition, why whiplash is such a common injury when a road traffic collision occurs between two vehicles and in particular in a rear-end shunt. A driver or passenger in the vehicle that is run into, will find that their head and shoulders are jolted backwards and forwards, thus spraining the soft tissues of the neck and shoulders.
Whiplash injuries aren’t just caused by road traffic accidents. A number of employers’ liability accidents at work compensation claims involve claims for damages for whiplash injury caused by a heavy blow to the head e.g. an object falling onto an employee’s head, from shelves in a warehouse or supermarket, caused as a result of an unsafe stacking system. Slip, trip or fall compensation claims may involve compensation for whiplash because the victim’s head is suddenly jolted backwards, as he or she falls.
If you are still with us at this point, you will recall that the question posed in the title to this article (slightly paraphrased) was:
“My whiplash still hurts. What should I do about it?”
OK, you might be asking the question for one of a number of different reasons and as we aren’t fully acquainted with each other yet, we’ll look at the different scenarios that might prompt this question and, more importantly, provide some suggested solutions.
- I’m asking the question because I was involved in an accident 48 hours ago and at the time I seemed OK, but now my neck has started to get sore and is getting worse? Is it too late now to make a claim for whiplash compensation? Will the insurance company think I am making it up because I told the other driver I wasn’t injured at the scene?
This is a slight variation on the original question but nevertheless very valid and easily answered. It is a bit of a quirk of the whiplash injury that sometimes there can be a delay in the injury presenting itself, i.e. you might not feel pain at the time of the accident, but as the day goes on you start to get pain and stiffness of the neck and or shoulders. In some cases, it can be up to 48 hours before the onset of pain.
So, to answer the question, no it isn’t too late and ‘no’ even the most hardened of insurance company employees should know that whiplash can take a little time to manifest itself after an accident.
It would be a very good idea to see your GP as soon as possible. This is for two reasons. First to get checked over. Your doctor will want to see that there is nothing broken and to try to gauge the extent of movement that you have in the neck region. Your GP is unlikely to send you for an X-ray unless he or she thinks a bone is broken. More likely you will be told to take over the counter pain-killers and given some exercises to try. The other reason for going along to the GP, is so that you can explain to the doctor (which he/she will outline in your notes) that the pain only started to show itself 24/48 hours after the accident.
After visiting your GP, you might want to talk things through with a lawyer that is used to dealing with whiplash claims, such as the solicitors here at Truth Legal. There’d be no obligation to use us, but we’ll talk through your options and explain that we would be able to deal with your claim on a No Win, No Fee basis and then we’d let you decide what you want to do.
- My whiplash still hurts. I have a paralegal/claims handler/litigation executive dealing with the claim for me and he is trying to pressurise me to settle my claim, but my whiplash still hurts? What should I do?
When a lawyer (and remember that very lawyers in the personal injury world are qualified) receives instructions from someone seeking to recover whiplash injury compensation, usually after a road traffic accident collision, the action he or she will take will be along the following lines;
After taking the clients instructions (their account of the accident circumstances, details of the other driver and his/her insurance company and of the injuries), it is likely that the solicitors will have lodged a Claims Notification Form (CNF) with the Ministry of Justice’s Internet Portal which is where all Road Traffic Accident claims are dealt with when compensation is unlikely to exceed £25,000. The CNF provides the insurers of the other, at fault driver, with the necessary information to investigate the claim.
The insurance company have 15 days to carry out their investigations and to decide whether they are going to admit liability for the accident. Let’s assume that liability is admitted by the insurance company at the end of that period.
At this point the personal injury lawyer will arrange for their client to be examined by an independent medical expert. Only in more serious cases will have access to the client’s medical records to check for any pre-existing conditions that might affect what they put in their report. When the report has been produced by the expert it will be sent to the solicitor who will have gone through it with their client (we hope).
The report will, amongst other things, outline the nature of the injuries, whether the doctor thinks that they were wholly caused by the accident, whether the client would benefit from physio or chiropractic treatment and finally, how long the doctor thinks it will be before the client recovers fully from the whiplash injuries they have suffered.
How long it takes for a client to recover from whiplash varies greatly and depends on how severe the accident was that caused the injury and whether the client is young or old, physically fit or not.
In many cases the client will have totally recovered from the effects of the injury within a matter of a few weeks or even a few days. That means that by the time the client goes to see the medical expert, he or she will be fully recovered. This type of case is very straightforward to negotiate settlement on. The solicitor will use a mixture of experience of similar cases and the helpful Judicial College Guidelines to arrive at a compensation figure that both parties agree to be reasonable.
What, though, happens if the medical report suggests that the client should recover in say 6 – 12 months/ 12-18 months or 18-24 months from the date of the accident? Such ‘guarded prognosis’ reports usually conclude with wording along the following lines;
“If the client has not fully recovered within the anticipated recovery period, then I would recommend that he/she be re-examined after that period has elapsed.”
This can be where problems start. Let’s say that the ‘client’ sustains a whiplash that the medical expert thinks he or she should fully recover from within 6 – 12 months from the date of the accident. The report with the client’s agreement is then sent by her solicitors to the insurance company and they make an offer to settle for £3500. That is the sort of compensation that a client might expect to get for a whiplash, without complications, where the client makes a full recovery, within 12 months of the accident
However, if that offer is made, for sake of argument, only 6 months after the accident has taken place and in addition, the ‘client’ is still suffering symptoms from the whiplash injury, then settling the claim at this stage might be premature and dare we say, fraught with danger. What if at the expiry of 12 months from the accident, and despite availing themselves of any physio or chiropractic help offered by the insurers, the client is still suffering symptoms?
If the client accepts the insurers offer as it stands, then the client potentially under settles their claim. What if the whiplash injury actually lasts for two years, but the client has already settled? They could have expected to recover something in the region of £5,000/£6,000. However, they are stuck with the settlement of £3,500 as it would have been in full and final settlement of all claims arising out of the accident (we have assumed for simplicity of argument that this hypothetical client was only claiming compensation for whiplash and nothing else).
If the symptoms of injury last for longer than that i.e. more than two years, then the client may have settled for a sum that might have been a ¼ or less of what they should have recovered, had they waited and obtained a further report (as the medical expert advised them to do in his first report).
We believe that clients should never (unless their financial situation dictates otherwise) settle a claim for whiplash compensation whilst they are still suffering from more than very minor symptoms. If the medical expert has produced a report that indicates that in his opinion the client will have symptoms for another X months, then the client should wait until the end of X months and re-assess. If necessary, insist that your solicitor obtains an updated medical report for you from the same expert that carried out the first one. If you have recovered at that stage then settlement can safely be discussed.
If you are unhappy with the way that your solicitor is dealing with your claim (if they are qualified?) don’t forget that you have every right to change to a new one. You can switch solicitors.
3. My whiplash still hurts but my case has been settled for what I now believe was too low a settlement figure. What can I do?
If an under-settlement like this occurs, whose fault is it?
a) It could have been your fault!
Some clients, often understandably, want to settle as quickly as possible, put the whole nasty experience behind them and bank their compensation. If the dangers of settling the claim, before being fully recovered, have been properly explained by the solicitor to the client who then signs a clear authority which outlines that they had been made aware of all the dangers of settling at that stage and that they were aware of the risk, then it may be that the client was the author of her own misfortune. There are cases too where the client is desperate to settle because they need the money urgently, for instance. Often this will be against the solicitor’s advice. However even in that case, there is still a very great duty on the part of the solicitor to ensure that he has advised the client properly to the effect that they are aware that the settlement they are accepting is a once and for all settlement.
b) It could have been the solicitor’s fault
If a case proves to have under settled, should a claim be made against him for negligence by his (former) client, the solicitor will have a difficult job proving that it wasn’t his fault.
It is not always the case that it is the clients who push to settle whiplash claims quickly. True, the majority of solicitors will be, if anything, over cautious when it comes to advising a client whose injuries have not yet settled about accepting a final settlement too soon.
Sadly though, some firms of lawyers do tend to view whiplash injuries and the road traffic accident claims from which they predominantly emanate, as claims to be ploughed through the system as quickly and cost effectively as possible. And many personal injury lawyers have too many cases, aren’t qualified, and are under intense pressures to settle files.
The amount of costs a solicitor can recover after acting for a client in a successful road traffic accident compensation claim has, over recent years, been reduced significantly. Nevertheless, a competent solicitor will still undertake these claims in a totally efficient and professional manner.
Alas, some solicitor’s firms take the line of least resistance when dealing with whiplash compensation claims and try to settle them as quickly as possible. In the example that we have been using of the client with a prognosis (doctors opinion) of a full recovery within 6-12 months of the accident, there is a temptation for solicitors with the ‘quick process’ mindset to press the client to settle as soon as the offer is made. If the solicitor (or more likely the clerk) that has been tasked with dealing with this type of work, makes the point forcefully enough (“you probably won’t get anymore even if you wait” , “ the money’s better in your bank than the insurer’s” , “ if you have to have a further medical report and you don’t get a higher offer, you’ll have to pay the costs of the second report”) then the client who, after all, instructed the solicitor to sort the claim out for them and relies on their advice, could be forgiven for throwing in the towel at an early stage and taking the money.
What should you do if this has happened to you? We think that you might very well be looking at bringing a claim against your (former) solicitor on the basis of negligent advice. All solicitor’s firms are obliged to have indemnity insurance to cover such negligence claims.
It is becoming more and more of a problem. Too many firms who undertake road traffic accident compensation work deal with whiplash claims as part of a process to be got through the system as quickly as possible and as cost effectively as possible by very junior fee earners who are simply not experienced enough and have not been trained sufficiently well, to provide you with the advice that you are entitled to expect from a firm of solicitors.
If you think that your claim for whiplash compensation has been under-settled and you want to discuss in complete confidence, the possibility of bringing a claim for negligence against your former Personal Injury solicitors, then call us here at Truth Legal on 01423 788538.
From one of the UK’s most read legal blogs.