PI Brief Update

What is Whiplash? - Dr Mark Burgin

30/06/23. Dr Mark Burgin considers the risks of a gap forming between medical expert opinion and legal opinion on the concept of whiplash to a fair and just system.

My understanding of the word “whiplash” is that it is used to describe an injury to the spine following forceful flexion or torsion and includes radiating pain. These movements of the spine can be sufficient to cause tearing of the ligaments and bruising of the soft tissues including nerves. Where there is pre-existing degeneration the force required to cause injury is likely to be lower. If the bones and discs are damaged then it is not likely to be considered as whiplash.

The concept of whiplash itself has always been controversial. Experts have long argued that most impacts do not cause the whiplash mechanism and they actually cause injury through a different mechanism. A minority believe that radiating pain is not caused by an irritated nerve but is actually a series of injuries to different structures in the arm or leg.

The Civil Liability Act 2018 in the UK has led to some changes in the way whiplash is diagnosed for legal cases. The Act introduced a tariff system for whiplash claims, which sets out a maximum amount of compensation that can be awarded for different types of injuries. Non whiplash injuries are still calculated on the old system. This has led to some lawyers trying to classify injuries that were previously considered to be whiplash as non-whiplash to increase compensation.

Despite these arguments, it is clear that whiplash can be disabling with long term chronic pain and neurological problems such as brain fog and fatigue. The lack of effective therapies and objective tests means that many with genuine symptoms are undercompensated. On the other hand there remains persisting concerns that despite thorough medical assessments some people will pretend to have the condition to gain compensation.

The Whiplash Mechanism

The Whiplash Mechanism typically occurs when the head and neck are suddenly and forcefully moved in a backward and forward direction. This can happen in a car accident, when the car is rear-ended or hits another car head-on. It can also happen in a sports injury, such as a fall from a horse or a skiing accident.

The rapid and forceful movement of the head and neck can cause a number of injuries to the neck muscles, ligaments, and discs. These injuries can lead to pain, stiffness, and decreased range of motion in the neck. In some cases, whiplash injuries can also cause headaches, dizziness, and fatigue.

The S-shaped change to the cervical spine is a common finding in whiplash injuries. This is caused by stretching and tearing of the ligaments and muscles in the neck. The S-shaped curve can be seen on X-rays or MRI scans.

The whiplash mechanism is often incorrectly used to describe any forwards and backwards movement of the head and neck. When the neck is jarred or jolted the injuries often occur through soft tissue injuries in areas of degeneration rather than the whiplash mechanism.

Whiplash Associated Disorder

It is important to note that the severity of WAD does not always correlate with the severity of symptoms. For example, someone with Grade I WAD may experience severe pain and disability, while someone with Grade IV WAD may have only mild symptoms.

The Quebec guidelines on Whiplash-associated disorders (WAD) classified different grades based on the severity of symptoms and the presence or absence of physical signs.

· Grade I: Neck pain and associated symptoms, such as headache, dizziness, nausea and fatigue, in the absence of objective physical signs.

· Grade II: Neck pain and associated symptoms with the presence of objective physical signs, such as decreased range of motion or tenderness in the neck muscles.

· Grade III: Neck pain and associated symptoms with evidence of neurological involvement, such as decreased or absent reflexes, decreased or limited sensation, or muscular weakness.

· Grade IV: Neck pain and associated symptoms with evidence of fracture or dislocation of the cervical spine.

Whiplash-associated disorders (WAD) has subdivisions with 2B and 2c which include minor psychological symptoms in a similar way to legal whiplash. WAD does not include radiating pain in its classification.

Legal whiplash

Legal whiplash comes from The Civil Liability Act 2018 definition of whiplash injury:

An injury of soft tissue in the neck, back or shoulder that is of a description falling within subsection (2), but not including an injury excepted by subsection (3).

Subsection (2) lists the specific types of soft tissue injuries that are considered to be whiplash injuries. These include:

· An injury to a muscle

· An injury to a tendon

· An injury to a ligament

Subsection (3) is unclear about the types of injuries that are not considered to be whiplash injuries and the following may or may not be covered.

· An injury to a nerve

· An injury to a disc

· A fracture

This definition could be interpreted to exclude some types of medical whiplash. Where there is radiation of the pain the statute does not specifically include this injury. The definition does also include some non-whiplash injuries such as rotator cuff injury of the shoulder.

Radiating pain

Referred pain is a common phenomenon that can occur in a variety of conditions. It is caused by the way that the nerves in the body are connected. When an area of the body is injured, the nerves that supply that area can also send pain signals to other areas of the body. This is because the nerves that supply different areas of the body often overlap.

Referred pain can be a difficult symptom to diagnose, because it can be mistaken for pain from another source. However, there are a few things that can help to distinguish referred pain from other types of pain.

• Referred pain is usually dull and aching and not relieved by movement, while other types of pain may be sharp or stabbing and ease with exercise.

• Referred pain is often constant and severe, while other types of pain may come and go and are easier to manage.

• Referred pain can be reproduced by pressing on the area where the original injury occurred.

• Referred pain often has other associated neurological characters such as pins and needles, numbness or muscle weakness.

Often the cause of the pain is only recognised after a response to treatment of the injured area or a failure of treatment to the referred pain. For instance surgery to the shoulder after whiplash has a generally poor success despite imaging confirming wear and tear changes in the shoulder. The courts have final decision to the question ‘Should referred or radiating pain should be considered separate injuries or part of the whiplash?’

Legal cases

The key case is Hassam, Belsner is also interesting because it suggests that claimant will be the losers in contested claims and includes a helpful description of the current system. The Whiplash Injury Regulations 2021 remind professions how low the current payments have been set.

Hassam & Anor v Rabot & Anor [2023] EWCA Civ 19

• The tariff award for whiplash injuries is a fixed amount, set by law.

• The assessment of non-tariff injuries is based on the common law principles of assessment.

• The Court of Appeal's "stepping back" approach ensures that the tariff award is not used to cap the overall award for a claimant's injuries.

• The final award must not be lower than the overall award would have been if the only injuries suffered by the claimant were the non-tariff injuries.

Belsner v CAM Legal Services Ltd [2022] EWCA Civ 1387- The case was brought by a client who was unhappy with the amount of fees charged by her solicitors. The claim was settled for £1,541.98, and the solicitors were awarded a success fee of 25% of the damages, which was £385.50. The solicitors also claimed for their base costs, which were assessed by DJ Bellamy at £1,392 plus VAT.

“Following the Civil Liability Act 2018, which introduced tariff damages for RTA claims, the Official Injury Claim Service (the Whiplash portal) was developed by the Motor Insurers’ Bureau. The Whiplash portal began on 31 May 2021, and is governed by the pre-action protocol for personal injury claims below the small claims limit in road traffic accidents (now £5,000). The Whiplash portal is accessible both by litigants in person and by those that are represented. No costs are recoverable for the period prior to the issue of court proceedings. Claims are now being brought within the Whiplash portal at the rate of about 300,000 per year.”

The Whiplash Injury Regulations 2021 No. 642 gives the details on payments, uplift and medical evidence required.

Conclusions

There has been increasing efforts to allow claimants to self-identify their injuries as whiplash and non-whiplash. Under the current system, claimants are required to see a doctor to get a diagnosis of whiplash. However, there is no objective test for whiplash, so the diagnosis is often based on the claimant's subjective symptoms. Allowing claimants to self-identify their injuries would help to address this problem but leave the system open to being gamed.

If a solicitor believes that their client's radiating pain is not caused by whiplash, they may instruct an expert to review the client's medical records and provide an opinion on the cause of the pain. The expert has usually performed a physical examinations and may order additional tests to support their opinion. The risk of arguing that the pain is not referred is that this could indicate pre-existing and non-accident injuries.

MedCo has noted that many whiplash type injuries are classified as non-whiplash but have vague or inconsistent mechanisms of injury. One reason is that the mechanism of injury may be unclear as the injury might occur in different ways. It may be difficult to remember whether the injury was caused by the whiplash motion or by direct contact with the dashboard or steering wheel. MedCo’s efforts to improve this aspect are helpful.

Court cases will be required to resolve whether radiating pain from a spinal injury is or is not legal whiplash. Although many experts believe that radiating pain is part of the spinal injury some experts take a different view. Solicitors may be confused by their experts holding different positions on this point. Medicine does not have definitive answer so lawyers will need a ruling to provide certainty as to what the legal definition is.

In the meantime solicitors should try to avoid undermining their expert’s reports and follow the correct procedures. Often review of medical records confirms that the clamant had pre-existing problems in the area of injury. It is also important to remember that this field of law is highly dependent upon the concept of whiplash. This means that arguing against whiplash as the cause of injury in an RTA will undermine the basis of all RTA claims.

Summary

• Medical whiplash is a neck injury that can be caused by a sudden and forceful movement of the head and neck and the Quebec guidelines on Whiplash-associated disorders (WAD) classify severity.

• The Civil Liability Act 2018 defines legal whiplash injury as "an injury of soft tissue in the neck, back or shoulder that is of a description falling within subsection (2), but not including an injury excepted by subsection (3)."

• The definition of whiplash under the Civil Liability Act 2018 is unclear about the types of injuries that are not considered to be whiplash injuries, in particular referred pain.

• Referred pain is a common phenomenon caused by the way that the nerves are connected and often occurs in whiplash injuries and can be misdiagnosed even by consultant orthopaedic surgeons.

• Current medical limitations when identifying the mechanism of injury can cause misunderstanding of the likely diagnosis of an injury.

• The courts have not yet ruled on whether radiating pain from a spinal injury is or is not legal whiplash. This means that the legal status of radiating pain from a spinal injury is uncertain.

This article was written with assistance from BARD a LLM from Google.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

Image ©iStockphoto.com/BrianAJackson

This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.