By Eoin P. Campbell, LL.B., Solicitor
What is Whiplash?
Whiplash injuries are usually caused by hyperextension of the neck both forwards and backwards in quick succession and are commonly associated with road traffic accidents in which the victim’s vehicle has been struck in the rear. The result is a potential whiplash injury compensation claim.
The whiplash injury can be sustained in many other ways however, and has been known to have resulted from slips and falls or have been sustained during participation in contact sport. In general, whiplash is usually associated with circumstances where a collision has caused rapid acceleration or deceleration.
What are the Symptoms of Whiplash?
Whiplash symptoms primarily include pain and stiffness in the neck, shoulders and lower back. Secondary whiplash symptoms are also known to sometimes include headaches, dizziness, fatigue, a tingling sensation in the arms and hands, vision problems, insomnia, and concentration or short-term memory problems. Pain and stiffness in the neck is almost universal whereas victims rarely have more than a few secondary symptoms.
Diagnosis of Whiplash
Whiplash is by its nature notoriously difficult to accurately diagnose. The diagnosis of the injury itself is, of course, a medical question rather than a legal one. It will prove extremely difficult for your solicitor to make a strong whiplash injury claim case on your behalf unless there is an entry on your medical records stating you have whiplash. As with all serious injuries (whether the result of a road traffic accident or otherwise), you should report to the casualty department of your nearest hospital immediately or at the very least make an urgent appointment to see your general practitioner. Failure to seek immediate medical care may be taken as an indication of not having a genuine whiplash injury or not having a serious whiplash injury. Your doctors can not use MRI scans, X Rays, or CAT scans to determine the extent of the whiplash and will therefore make a professional judgement based on your description of their whiplash symptoms.
What should I do if I suffer a Whiplash Injury?
Your Health and Safety
As obvious as it may seem, it should always be remembered that your health and safety is the most important consideration. If, for example, you have been injured in a road traffic accident, your wellbeing, that of your passengers, and anyone else involved is far more important than any potential claim that you may have. If anyone has been seriously hurt, an ambulance (together with the Gardai) should be called immediately.
Go to the Hospital
Following an accident (be it a road traffic incident, an accident at work or otherwise) it is of the utmost importance that you report to the casualty department of the nearest hospital, or at the very least make an emergency appointment with your general practitioner. Even if immediately following the accident you feel that your injuries are not particularly serious it is still advisable that you see a Doctor. Whiplash Symptoms can be experienced immediately following impact but often do not commence to develop for a number of hours after the accident and then may worsen during the next 24 to 48 hours. Never underestimate peace of mind. The reality is that monetary compensation is no substitute for your health and wellbeing and as any solicitor who specializes in personal injury litigation can tell you, a common remark from clients (particularly those who suffer from long-term neck and back problems due to whiplash) is that they would exchange the compensation money in order to revert to their prior health and fitness ‘in a heartbeat’.
It should be noted further that your attendance at hospital or with your doctor will be recorded in your medical records which may later be used in evidence to support your claim.
How much is my Claim for Whiplash Worth?
This is one of the most common questions asked by clients of their solicitors in relation to whiplash type personal injury claims.
The short answer is that in the early stage of the preparation of any personal injury litigation case there is absolutely no way of knowing the answer to this question.
Experienced as a solicitor may be in litigation cases of this nature, it is worth reminding oneself that a solicitor is not a medical doctor. A solicitor is the first to recognise this fact and will only begin to consider the potential settlement value of the case when medical evidence in the form of your medical records and possibly written reports from your general practitioner (or perhaps specially commissioned reports from a consultant have been obtained).
How is the ‘Value’ of my Whiplash Claim Decided?
It is important to remember that (assuming liability is not in question) the ‘value’ of any personal injury case is assessed by looking at the severity of the injury to the plaintiff and how same will affect their working, family, recreational and personal lives in the short, medium and long terms.
Some injuries (and whiplash type injuries in particular) may take some time to fully manifest themselves and it may be some months or even years before your doctors can provide an accurate prognosis of the expected recovery period or diagnose a long-term condition.
Moreover your claim may well include an aspect of “special damages” for example loss of earnings (including potential loss of future earnings).
Should I Settle my Whiplash Injury Claim Directly with an Insurance Company?
I would advise those who have sustained a personal injury as the result of the fault of another in a road traffic accident to consider the above very carefully after an accident has occurred. Increasingly, clients are reporting that they have been contacted directly by the third party’s insurance company with offers of settlement in the weeks or even days following the incident.
The temptation to accept an early offer of settlement is strong; the immediate offer of money with minimum hassle and fuss, particularly in the current economic climate, often seems too good to refuse. There is however no way of knowing how much the claim is potentially worth at such an early stage and the risk is that the plaintiff may settle their claim for a figure that falls short of its potential value. It is worth asking yourself the question ‘Why would the insurance company offer to settle the case at such an early stage?’. The response is quite logical; to save costs. The liable party will normally be responsible for not only the compensation payment but also for both sets of legal costs and for the costs of procuring specialist medical reports.
Summary
- Although whiplash is generally considered to be an injury sustained solely in a car collision, whiplash injury claims can result from many different types of accident.
- Incidents in which the neck has been hyper-extended both backwards and forwards in rapid succession can lead to whiplash injury claims if the incident has been due to third party negligence.
- Difficulty in accurately diagnosing whiplash, and the length of time it takes for all the symptoms to manifest, make whiplash injury claims complex matters to resolve.
- Nonetheless, whiplash injury claims should always take second place to seeking professional medical treatment and ensuring your injuries do not develop into long term health issues.
- The value of whiplash injury claims is determined by many factors including the severity of your injury, how long it may take to heal and what effect the whiplash will have on your quality of life.
- This is why it is important that you do not deal with an insurance company about whiplash injury claims. Rather, speak with a solicitor on our free advice service to ensure you receive the full award of compensation you are entitled to.
It is important to note that each whiplash injury claim is unique. If you have recently been involved in an accident in which you have sustained a whiplash injury and feel that you have a potential whiplash injury claim, you are advised to discuss all of the points raised in the preceding article with a solicitor at the earliest opportunity.
Copyright © 2009-2019 Eoin Campbell
About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose professional experience is in the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.