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“The problem of fraudulent and exaggerated whiplash claims is well recognised and should…cause judges…to approach such claims with a degree of caution, if not suspicion.” Mr Justice Martin Spencer, Molodi v Cambridge Vibration Maintenance Service & Anor [2018] EWHC 1288 (QB).
The classic scenario in a low speed impact is that one vehicle hits another at a low speed and there is barely any damage to either vehicle. The seemingly minor impact prompts claims for compensation for whiplash injuries, often with lengthy prognoses of 12-18 months of suffering.
The argument follows that an impact occurring at such a low speed means that the occupants of the vehicles cannot have been sufficiently displaced and therefore injury is not possible.
Of course injury can occur from an impact at low speed and those genuine claims should be quickly resolved. However, the subjective nature of whiplash means that there are claimants willing to claim for injury regardless of the speed of the impact and regardless of any actual injury suffered.
Where real concern exists in respect of a fabricated or exaggerated injury, a compensator, in deciding whether to run a low speed impact defence, may apply a set of criteria. These often include focusing on vehicle damage and alleged speed and whether these are capable of proving that injury could not have occurred. The old ‘proving a negative’ dilemma.
But if proving a negative is hard, why are we doing it? There are alternatives, with all alternatives requiring an understanding that this area of claims is not black and white.
Exploring the claimant’s behaviours are key. Are the behaviours focussed on injury and recovery or on recovering compensation? What are the reasonable behaviours of someone injured?
A claimant may not have sought medical attention but immediately sought legal advice. Importantly, a claimant’s credibility and that of the insured driver is arguably the most important factor and that is never immediately clear.
Key indicators are helpful but may not paint the complete picture. One person’s ‘low speed’ may be another person’s ‘medium speed.’ A headrest is designed to prevent whiplash injuries. One vehicle may be considerably heavier than the other.
A credible claimant, genuinely injured, will rightly recover compensation. But a claimant presenting an inconsistent version of events, without any objective evidence of injury, a concealed accident history or who is unable to explain how they were injured, is likely to fail.
Whilst it’s all a bit of a fog, it is worth remembering that a claimant has the burden of proof and when considering this look at the following:
- The force and speed of the impact
- Body movement and displacement
- If that movement was enough to have caused any injury
- The period of injury alleged.
If the claimant cannot prove this then the claim fails. A robust and proper challenge will often prove successful.
Claimants, and those enabling them, remain positive. If you need a reminder that low speed claims remain profitable for those enabling claims, then Google ‘low speed impact’. There are numerous results from solicitors assuring potential claimants that it is possible to suffer injury even if the impact was at a low speed and there is minimal vehicle damage. One goes so far as to claim that low speed impacts pose more danger than high speed accidents.
Many websites contain advice such as listing the possible types of injuries that may have occurred and reminding claimants to make sure they attend a general practitioner. All very encouraging to claimants and perhaps only the tip of the iceberg as to the ‘off the record’ advice given to claimants to ensure a claim for compensation is maximised and legal costs recovered. And in the absence of a triage using key indicators, some investigations and a ‘common sense’ review, claims will continue to sneak under the radar in the MOJ Portal to the benefit of those claimants.
Where these claims are being challenged the cost of proving a negative (that the claimant was not or could not have been injured) can be expensive. But such an approach is often not necessary. Complex engineering evidence or costly medical evidence is not required in most claims. Ensuring the onus is on the claimant, and testing the presented claim properly, remains the most fruitful and cost effective route to successfully managing these claims.
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United Kingdom