LVI — A fresh approach for defendants

It is no secret that despite the fact that we’re driving much safer cars and the total number of accidents on UK roads is falling, whiplash claims are on the increase. This surge is likely to continue in the current economic climate. In 2010 for example, there was a 22% increase in claims for personal injury arising from low velocity impact cases.

Medical experts tend not to question the extent of a patients declared pain/disability and the evidence relied upon is often completely subjective. Accordingly, unlike in most civil disputes, claimants will often be compensated where there is no hard evidence of vehicle damage or of the extent of their pain and suffering. For this reason, the Courts are increasingly looking to assess the credibility of a claimant whilst restricting the use of expert evidence.

The Motor Investigation Unit has adopted the approach set out in the case of Golden v Dempsey (2010) which has had the positive impact of encouraging defendants to consider a claimant’s credibility as a key factor in assessing whether a real injury has been sustained. In this case, HHJ Holman clarified how LVI cases should be conducted. Importantly, he acknowledged that the question regarding whether the vehicle had any structural damage was an obvious and legitimate one. However, he refrained from offering any opinion on the issues of Delta V (the speed change a vehicle experiences as a result of an impact) or on occupant displacement, as were commonly referred to in earlier cases. He noted the previous guidance set out in the cases of Kearsley v Klarfeld (2005) and Casey v Cartwright (2006) which highlighted that claimants should offer early access to their vehicle for the purpose of inspection as well as early disclosure of medical records. However, the clear message to take from Golden v Dempsey is that expert engineering and medical evidence should now be used sparingly. In accordance with this, the Motor Investigation Unit focus amongst other things on investigating a claimant's credibility in LVI cases, with the use of social networking sites (Facebook, MySpace, Twitter etc.) and by gathering evidence of any previous accidents to establish similar fact patterns.

Early indications are that the Golden v Dempsey strategy is resulting in significant savings for the insurer client and some notable wins at trial. In the recent Weightmans case heard at Birmingham County Court, the claimant was a passenger on a bus which was involved in a low speed collision with a third party vehicle. Adopting on part the Golden v Dempsey strategy, we did not seek technical engineering evidence or a report from a forensic specialist. Rather, we obtained the bus’ internal CCTV and asked the Judge to make a decision on whether the claimant could have sustained injury based upon the speed of the collision and the apparent lack of movement displayed by him on the footage.

Alongside the CCTV evidence, stringent questions were put to the claimant’s medical expert on the forces involved and the likelihood of injury. In his replies, the expert stated he had made his diagnosis based upon the claimant’s subjective evidence. He was forced to admit that he had judged the claimant to be “jolted” forwards and stated that whether the jolt was sufficient to cause injury was outside his area of expertise. This, along with the claimant’s poor evidence/credibility meant that the District Judge could not establish that he had been injured as alleged and the claim was dismissed. The defendant was awarded £5,200 in costs and made a £32,000 saving on the reserve figure for opponents’ costs and damages.

Jack Straw recently adopted an equally hard line on rising levels of reported whiplash injuries, which he cited as now accounting for 80% of all UK claims, a figure he quoted as “ridiculous” when compared to other European countries such as Spain, where the figure is approximately 30%. He has introduced the Motor Insurance Regulation Bill 2010- 2011 which proposes to establish new standards relating to the evidence required and damages payable in whiplash cases. The bill will have its second reading in the House of Commons on 20 January 2012. In the meantime, much research is being carried out in the UK on car safety/collision avoidance technology as well as developing tools designed to provide an indication of the probability of whiplash injury in an attempt to tackle this growing problem.