The December 2012 issue of the Radar journal.
In a nut shell, the normal neck is to varying degrees defective. Most of us just ignore it. It comes and goes.
Normal defect does not often count as a motoring injury unless a person is examined after a not-at-fault car crash. At that point, the observed defect is an injury and what’s more, it was caused by the car crash! At-fault drivers are many times less likely to be described as injured.
The problem has been that expert examiners have had no common-law-compatible method for distinguishing between normal and probably abnormal. They have had no tools for assessing, from a common law point of view, whether there is an injury or not. So, they use a medical approach instead. Medics are in effect precautionary, rather than reasonable, and trusting rather than probabilistic. This approach is acceptable for broken bones, but is of doubtful relevance to the common law when the actual defect is commonplace and normal. Insurance claims are supposed to work in a common law regime.
After a long wait, researchers have now produced baseline evidence that permits a common-law-compatible assessment to be made with high certainty. In practice the method of assessment should add no more time or effort to the usual exam, unless the injury is exceptional. The difference is in the understanding.
Preliminary analysis shows that:
- 45% of people with a whiplash neck injury diagnosis would not pass the common-law-compatible test.
- For about 85% of cases, prognosis would usually be below 3 months and certainly below 6 months.
- The ones with a longer prognosis can be identified by 4 weeks from the accident.
- Physiotherapy provides no reasonably foreseeable contribution to indemnity, regardless of injury severity. Given the nature of science research it is still possible that ~ 5% really would benefit. But no more than that.
- It should also now be possible to audit the performance of expert examiners.
The preliminary analysis of prognosis is in the same ball park as an earlier analysis which was made when the data was less good. The rate of unacceptable diagnosis is much higher than the previously expected 25%.
If validated by review, the adoption of a common-law-compatible test would lead to very substantial change in frequency and size of successful claims.
Thorough re-examination of the research literature, using the new data as a reference level, would provide more precise estimates and would quantify the “room for negotiation”.
