Whiplash Claims and Compensation
If you have sustained a whiplash injury, whether due to a motoring accident or as a workplace injury, it could be that you are entitled to financial compensation. Some people believe there is a stigma attached to compensation claims in general, and while that may be true it applies only to frivolous cases. In genuine cases where injury has been sustained through the fault or negligence of someone else, you are perfectly entitled to expect compensation for your injuries and associated suffering and expenses.
Whiplash injury compensation is intended to compensate you for the following:
- Pain, suffering and trauma
- Loss of income / loss of earnings / loss of employment
- Transport costs
- Medical expenses
- Other miscellaneous costs incurred as a result of your injury
- Costs of adapting your home or vehicle (in the case of extensive and permanent disabilities)
The Whiplash Injury Claims Process
If you wish to claim for compensation for personal injury then there are certain things that you should do to substantiate your whiplash claim and failure to do so may make claiming whiplash compensation a more difficult or more lengthy process. It is essential that you visit your doctor or GP as soon as you believe that you may be suffering from whiplash-related injuries in order that they may be diagnosed and treated effectively – not only to improve your chances of making a full recovery, but also to make it easier to obtain proper compensation for your injuries in the event that recovery is not straightforward or complete.
One of the most important factors is that you are able to substantiate the circumstances of your injury. If your whiplash injuries were sustained in a simple ‘rear-end shunt’ type of motoring accident then in the majority of cases blame is automatically apportioned to the driver who failed to stop, thereby causing the impact. If this is the case then a whiplash claim should also prove relatively straightforward if the guidelines here are followed.
In the case of side-on collisions or accidents involving multiple vehicles, or workplace injuries it may take longer for any party to accept responsibility. For this reason is is always vital where possible to obtain contact details for any witnesses immediately and to seek a written statement or account of the circumstances of the accident as they saw it. If you are injured and unable to do this, appoint someone else at the scene to do it for you as its importance cannot be overstated.
In order to make a claim for whiplash compensation you would need to approach a solicitor and instruct them to commence legal proceedings against the party responsible for your injuries. Legal fees can be substantial and while they can usually be recovered from the third party responsible in the event that your claim is successful, you could theoretically be left with a large legal bill and no compensation at all if your claim does not succeed.
Given the information above it is generally a good idea to consult a solicitor or personal injury lawyer who will operate on a ‘no win, no fee’ basis as you then bear no risk of incurring unrecoverable costs should the claim fail – their fees will only be payable if you win, and will be recovered directly from the third party responsible (or their insurance company) as part of the settlement. Typically you a ‘no win, no fee’ type arrangement will only be possible if your claim has merit and is likely to succeed, and a specialist will be able to tell you fairly quickly whether your particular case has merit or is frivolous and likely to fail.
When consulting a solicitor or personal injury lawyer on any basis it is essential to get a breakdown of costs that will be payable in all eventualities. This is especially true of ‘No win, no fee’ type arrangements – it is necessary to ensure that you will receive the full value of your whiplash injury compenation claim and that they will not deduct any additional costs – all costs should be passed to the negligent party deemed responsible for your condition. A ‘no win, no fee’ specialist is likely to work hard to win your case for you since they will not be paid if they do not. Using a ‘no win, no fee’ accident lawyer is risk free to the person making a claim since a failed claim will not cost anything and successful claims can result in substantial compensation.
As part of your claim you will likely need to undergo further medical examination. This will not be undertaken by your usual doctor or GP but by a nominated specialist to ensure that the resulting report is entirely independent and not in any way biased or prejudiced. The report will state the perceived extent of your whiplash injuries and also the prognosis, or how complete your recovery will be and how long it is anticipated to take.
Once the results of your medical assessment are known and your solicitor has a breadown of both your injuries and any out of pocket expenses, a claim can be initiated against the party that you deem to be responsible.
If your claim is straightforward then it is likely that your case will not go to court and will be settled by the third party out of court – the reason for this is simple – if a case goes to court when it is highly likely to succeed, the losing party will also have to add court costs and the cost of their legal representation to the final total cost of the claim against them. A compensation claim will only normally be contested in court if settlement terms cannot be agreed between the two sides.
Common factors affecting a claim
Factors that commonly affect the outcome of a whiplash compensation case include:
- Verification of your whiplash injury or Whiplash Associated Disorder
- Availability and validity of witness statements, if appropriate
- Diagnosis and treatment sought once injury became apparent is recorded and properly documented
- Any additional treatment sought is recorded and properly documented
- Your claim being made promptly after the injury was sustained
Most insurance companies will refuse to pay whiplash claims if they are not submitted within a certain time-frame. Even once liability has been accepted by the third party or their insurance company it can take months for whiplash claims to be finalised and for you to receive your agreed whiplash compensation payout.
General Damages and Special Damages
Damages forming part of a whiplash injury compensation claim can be split into two categories as below:
- General Damages:
This encompasses the pain and suffering and ‘loss of amenity’ experienced by the injured party.
It is difficult to place a financial value on pain and suffering, but The Judicial Studies Board Guidelines for the Assessment of General Damages (commonly referred to as JSB) attempts to do just that based on the available medical evidence, such as the likelihood of a full recovery, any ongoing problems and the anticipated recovery time.
‘Loss of amenity’ can be defined as a reduction in quality of life, convenience and comfort. It is specific to each person’s personal circumstances and calculated accordingly. If your injury prevented you from carrying out your hobbies and interests then the award for this element of your claim would be higher than where this was not the case, if it were deemed to have a serious impact on your life.
An example would be an amateur tennis player who was unable to play for the duration of their post-accident recovery. Someone who was not inconvenienced to such a degree and was not prevented from going about certain areas of their normal life would likely not receive such a large award – for example someone with precisely the same injury, whose hobby was watching television or listening to music.
- Special Damages:
Special Damages are simpler to quantify since they refer to actual specific financial costs incurred or likely to be incurred by the claimant during the course of their recovery. These costs could include expenses such as loss of earnings, reduction in income, transport costs, insurance excesses, medical costs, prescription charges, loss of or damage to personal possessions or property etc. The idea of Special Damages it to directly reimburse the claimant for financial losses sustained as a result of the accident. In the case of Special Damages only actual costs incurred or likely to be incurred are payable – the claimant is not permitted to make a profit – only to recover actual out of pocket expenses.