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Editorial: Practical Guidance on Proving Whiplash Injuries - Aidan Ellis, Temple Garden Chambers

31/05/18. Although the problems associated with determining potentially fraudulent or exaggerated whiplash claims are well known, since such cases depend heavily on the facts and the Court’s assessment of the credibility of the Claimant(s) they rarely reach the higher Courts. Two appellate decisions of Spencer J, sitting in the High Court, which were handed down on 24 May 2018 are therefore likely to attract particular attention. Both were cases in which, despite obvious inconsistencies in their evidence, the trial Judge ultimately accepted that the Claimant(s) sustained some injury and awarded some damages. In both Richards and McGrann v Morris and Molodi v Cambridge Vibration Maintenance Service, the findings in favour of the Claimant(s) were overturned on appeal.

Many interesting points arise from the judgments, for instance the correct approach to appeals against findings of fact and credibility and the approach taken to the “extremely formulaic” medical evidence. However, for the purposes of this editorial, I will focus simply on one common paragraph – paragraph 65 in Richards and 44 in Molodi – which are destined to be cited frequently in County Court cases. In those paragraphs, Spencer J suggests that Courts should approach whiplash claims with “a degree of caution, if not suspicion”. He continued to provide a list of what the Courts should expect to see from a Claimant before determining that (s)he has proved their case: (1) to have sought medical attention from their GP or hospital; (2) to have returned for further treatment in the event of non-recovery; (3) to have sought appropriate treatment in the form of physiotherapy (without prompting from solicitors); and (4) to have given relatively consistent accounts of their injuries, the progression of symptoms and the timescale of recovery. In relation to the final point, contrary to the approach of many County Courts, Spencer J emphasised the importance of the CNF as a document verified by a statement of truth and which is therefore capable of founding a contempt of court (see paragraph 9 in Richards).

None of those four factors is particularly surprising or unusual in whiplash cases. However, having been set out clearly by the High Court, claimants must now anticipate that Courts will go through those factors like a checklist in assessing whether whiplash claimants have proved their case or have been dishonest. Witness statements need to be directed to those issues. More fundamentally, the four factors form a useful yardstick against which claimants can measure the prospects of success at trial; though there can be no precise formula, in a case with significant problems with more than one of the four factors the claimant would need to think very carefully about the risks of proceeding to trial. As the case of Molodi illustrates, the risk in such cases is not only the dismissal of the claim but a finding of fundamental dishonesty.

Aidan Ellis
Temple Garden Chambers

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