TACKLING WHIPLASH Prevention, Care, Compensation

TACKLING WHIPLASH Prevention, Care, Compensation November 2008 (2002)

TACKLING WHIPLASH: PREVENTION, CARE, COMPENSATION 1 Foreword Whiplash is a major societal phenomenon. Our research has revealed that over 432,000 people make a whiplash claim every year equivalent to one in every 140 people in the UK. This is six times more than the total number of people who make workplace injury claims every year. And the problem is getting worse the number of people with cause to make a whiplash claim has increased by 25% over the last five years, so it is no surprise that whiplash now leads to nearly 2bn per year in compensation payments accounting for 20% of the typical car insurance premium. At the same time that whiplash claims are rising, the Government s road casualty statistics suggest that our roads are getting safer. This is because these statistics only capture injuries that are reported to the police, and most road traffic collisions leading to whiplash are not therefore included. This is leading to a glaring hole in the Government s road safety strategy. In fact, if sufficient priority were given to tackling whiplash, it should be relatively easy to start reducing it. Simple steps such as keeping a safe distance from the car in front would help reduce dramatically the number of crashes and subsequent whiplash problems. Simple awareness-raising initiatives could help more drivers choose cars that offer the best protection against whiplash and ensure that more people know how to correctly adjust their head restraint to protect themselves. And better diagnosis and targeted rehabilitation could help ensure that those who suffer whiplash are given the advice and support they need to minimise its impact. We must also consider why, though, we seem to have such a greater tendency to get whiplash than the rest of Europe. Do we really have weaker necks? Part of the answer must lie in our failing personal injury compensation system and our no-questions-asked approach to whiplash. It is vital that the Government delivers its reforms to the personal injury compensation system so that we can get care and compensation more quickly to those that genuinely need it and reduce the huge profits that claims farmers and others are making from the current slow and expensive system. And it is important that it is not always assumed that everyone in a car collision is likely to get whiplash, and that GPs take this into account in their more rigorous approach to handing out sick notes. We are delighted to be publishing alongside this paper a new consumer factsheet to help customers reduce their risk. But we can t solve this problem alone. We want to work with the Government, road safety campaigners, vehicle manufacturers, the medical profession, lawyers and others to lead a new campaign to prevent whiplash, provide fast care and compensation to those who genuinely need it, and to tackle fraudulent claims. We look forward to your support. Stephen Haddrill ABI Director General

2 TACKLING WHIPLASH: PREVENTION, CARE, COMPENSATION The problem What is whiplash? Whiplash is the term used to describe the neck pain which occurs after the soft tissue in the spine has been stretched and strained when the body is thrown in a sudden, forceful jerk. Whiplash is normally caused by a rear-end motor collision, when the resulting deceleration causes the spinal movement which can result in whiplash. Costs of whiplash Whiplash imposes costs: On individuals: People with whiplash report some or all of the following symptoms stiffness and tenderness of muscles in the upper back and neck; headaches; dizziness and sensory disturbances (such as pins and needles). These symptoms tend to last for only a few days in most cases, although occasional twinges can last for a few months. Very occasionally these symptoms may be longer-term. 1 On employers: Lost productivity where a person takes time off work due to whiplash. On the NHS: each time a person with whiplash visits a GP, the Government pays an 18 consultation fee, adding up to approximately 8 million per year. 2 On insurance customers: 20% of every motor premium, 66 on average, is paid out against whiplash claims, a total of 1.9bn every year. 3 1 Burton, McClune & Waddell (2002), The Whiplash Book, Stationary Office Books 2 www.medicalnewstoday.com 3 ABI estimate based on ABI and AA figures

70% 60% 50% 40% 30% 20% 10% 0% TACKLING WHIPLASH: PREVENTION, CARE, COMPENSATION 3 CEA Finland France Germany Italy Netherlands Incidence of whiplash Norway Spain Whiplash claims (as % of Bodily Injury claims) Switzerland UK Some 432,000 whiplash claims were reported last year. 4 This means that one in every 140 people in the UK make a claim for whiplash every year. This is six times the number 300000 of workplace accidents reported in 2006/07. The incidence of whiplash is also increasing: from 2002 to 2008, the number of whiplash claims increased by 25%. 5 280000 This increase in whiplash claims contrasts with the Government s road casualty statistics, 260000 which indicate that the number of slight injuries from road traffic collisions is falling. 6 240000 The chart below shows this divergence, which is largely due to cases not being reported to the police. 220000 Chart 1: Number of whiplash claims compared to number of reported slight injuries 200000 450000 1999 2000 2001 2002 2003 2004 2005 2006 400000 350000 300000 250000 200000 2003/04 2004/05 2005/06 2006/07 No. of whiplash claims No. of slight injuries reported by police Source: STATS19 and Compensation Recovery Unit data DFT 100 95 90 85 4 Compensation Recovery Unit (CRU) data the CRU is part of the Department for Work and Pensions, and recovers 80 NHS costs and government benefits from defendants where compensation has been paid out on personal injuries 5 CRU Data 6 The 75 Department for Transport statistics are based on information regarding personal injury road traffic accidents reported to police within 30 days, known as STATS19 data. It has been recognised that a significant proportion of non-fatal injury accidents 70 are not reported to police and that not all injuries are recorded by the police. The Government has started to match road casualty with hospital admissions data, which records information on inpatient admissions to hospitals. 1998 1999 2000 2001 2002 This would exclude the majority of people with whiplash who are not admitted to hospital

4 TACKLING WHIPLASH: PREVENTION, CARE, COMPENSATION 36% 600000 500000 400000 300000 International comparison Whiplash claims form a much higher proportion of personal injury claims in the UK than elsewhere in the EU. 200000 In 2004, the European Insurance and Reinsurance Federation (CEA) published a 100000 comparative study of whiplash claims in nine European countries. At 76%, the UK had twice the average percentage of whiplash claims as a proportion of personal injury 0 claims, 2002/03 as shown 2003/04 in the chart 2004/05 below. 2005/06 2006/07 72% CRU Chart 2: An international comparison 80% 70% 60% 50% 40% 30% 20% 10% 0% CEA Finland France Germany Italy Netherlands Norway Spain Switzerland UK Whiplash claims (as % of Bodily Injury claims) 300000 280000 Source: European Insurance and Reinsurance Federation (CEA), Minor cervical trauma claims, 2004 Proposal: 260000 The Department for Transport should review the range of data available to assess the levels of slight injuries as a 240000 result of road traffic collisions, to ensure it captures a full 220000 picture of what is happening on the UK s roads. 200000 1999 2000 2001 2002 2003 2004 2005 2006 450000 400000 350000 300000

TACKLING WHIPLASH: PREVENTION, CARE, COMPENSATION 5 Tackling whiplash Whiplash can be tackled through: Prevention; Diagnosis and treatment; Improving the compensation process. Preventing whiplash There are four ways to prevent whiplash: Improving driver behaviour; Using anti-collision technology in vehicles; Correct head restraint adjustment; Protective vehicle seat design. Improving driver behaviour Whiplash is most commonly caused by tailgating. Tailgating was a contributory factor in 8,853 crashes in 2007, second only to speeding in causing slight accidents. 7 Those driving for work are particularly prone to tailgate: 61% of at-work drivers admitted to tailgating, compared to 40% of other drivers. 8 Raising awareness of the risks of tailgating through public awareness campaigns would reduce the risk of collisions. 9 7 Department for Transport s figures, 2007 8 Brake 9 Tay, R. Effectiveness of Road Safety Advertising in Reducing fatal crashes in New Zealand ANZMAC 2003 Conference Proceedings

6 TACKLING WHIPLASH: PREVENTION, CARE, COMPENSATION International experience In New Zealand, the Government s Land Transport Safety Authority started a concerted programme of public awareness campaigns on road safety. It included a campaign on safe following distances, fronted by a well-known rally driver, with the slogan Only a fool breaks the two second rule. Independent evaluations showed that, as a direct result of this programme, road fatalities in 2002 fell to their lowest since the start of the public awareness campaigns in 1995. 10 Proposals: The Government s proposed new framework for Learner Drivers should emphasise the importance of safe following distances to prevent tailgating, including methods of calculating a safe distance, such as the two-second rule. The Government should lead a public awareness campaign on safe following distances. Employers should have driving at work policies in place that include information about safe following distances. Vehicle anti-collision technologies Vehicle manufacturers are developing a range of new technologies that help to prevent collisions. These include radar and laser systems and optical sensors that either alert the driver to brake or automatically apply the brakes under certain conditions. The insurance industry s research centre, Thatcham, has shown that these technologies could completely avoid car collisions at 10mph and reduce collision impact at 20mph by up to 50%. 11 10 Cameron, M, Guria, J., Lueng, J., An evaluation of the supplementary road safety package July 1995 June 2000 November 2002 11 Thatcham Research News, Issue 2, Vol 3, February 2008

TACKLING WHIPLASH: PREVENTION, CARE, COMPENSATION 7 Anti-collision technologies Adaptive cruise control Adaptive cruise control (ACC) links a car s cruise control system to radar. The vehicle automatically maintains a safe following distance between it and the vehicle in front. If the vehicle in front brakes suddenly, the ACC will react quickly and brake to avoid a potential crash. Collision mitigation braking system Collision mitigation braking system (CMBS) uses ACC radar and warns the driver visually and audibly that a potential collision could occur. In some cases the system will apply braking power to avoid or mitigate the collision. Low speed avoidance system This system uses laser radar to monitor the road ahead. Once an object is within six metres, the system calculates whether the driver is reacting fast enough to avoid it. If not, the system will automatically brake. Low speed avoidance system Proposals: Vehicle manufacturers should continue researching and developing anti-collision technologies. Vehicle fleet managers should consider purchasing vehicles with proven anti-collision technologies. This should reduce the amount of accidents, thereby lowering insurance premiums.

8 TACKLING WHIPLASH: PREVENTION, CARE, COMPENSATION Head restraints Thatcham research found that three quarters of drivers do not adjust their head restraints correctly. 12 This may in part be due to a lack of awareness about the correct way to adjust the head restraint. A correctly fitted head restraint can reduce the chance of sustaining a whiplash injury by 24%. 13 The top of the head restraint should be level with the top of the head, and as close to it as possible. Source: Thatcham International experience The Insurance Bureau of Canada and other stakeholders, including the Canada Safety Council, ran a national awareness campaign showing the correct way to adjust head restraints, called Rest up! Save your Neck. In conjunction with changes to the accident compensation system, this campaign saw a 28% reduction in the incidence of reported whiplash claims. 12 Thatcham, http://www.thatcham.org/ncwr/index.jsp?page=111 13 Farmer C.M, Wells J.K., Werner J. V., (1999), Relationship of head restraint positioning to driver neck injury in rear-end crashes, Accident Analysis and Prevention 31, p722

TACKLING WHIPLASH: PREVENTION, CARE, COMPENSATION 9 Proposals: The Government should introduce a public awareness campaign showing how to correctly adjust a vehicle head restraint. An information leaflet should be given to the driver when a MOT is conducted. Vehicle retailers should be encouraged to demonstrate how to correctly adjust head restraints at point of sale. Seat design Vehicle bodies have become stiffer since the late 1980s, increasing crashworthiness in high speed rear-end crashes. This helps reduce the incidence of serious injuries, but may increase the incidence of whiplash, due to a higher relative transfer of energy in a crash at the same speed. 14 This effect can be offset by whiplash prevention systems. Vehicle manufacturers in recent years have made significant improvements in seat design, which have been shown to reduce whiplash. Research has shown that people in cars fitted with advanced whiplash prevention systems have a 50% lower risk of sustaining long-term whiplash injuries than those in other cars. 15 Whiplash prevention systems The four most common whiplash prevention systems are: Reactive head restraints that automatically move up and forward during a collision, triggered by the occupant s weight transfer in a crash. Proactive head restraints that automatically move up and forward at the start of the collision, triggered by crash sensors on the bumper or within the car. Reactive seat protection in which the entire seat and head restraint absorb the energy of a rear-end collision. Passive seat protection that absorbs the energy of the collision, and allows the occupant to make contact with the head restraint without neck distortion. A reactive head restraint system 14 The Whiplash Commission Final Report 2005 15 Kullgren A., Kraft M., Lie A., Tingvall C., (2007), The effect of whiplash protection systems in real-life crashes and their correlation to consumer crash test programmes

10 TACKLING WHIPLASH: PREVENTION, CARE, COMPENSATION Seats Seats 40% 35% 30% 25% 40% 35% 30% 25% Thatcham carry out a whiplash test that recreates a typical 10mph collision, to assess how well each vehicle s whiplash prevention system mitigates the force of the collision. Recent years have seen a significant increase in vehicles rated by Thatcham as having Good whiplash prevention systems, rising from 16% in 2005 to 35% in 2008. 20% 20% 15% 15% 10% 10% 5% 5% /082006/07 2007/08 0% Good 0% Thatcham s whiplash test Acceptable Good Marginal Acceptable Poor Marginal Poor Seats Chart 6: Thatcham s whiplash ratings in 2005 and 2008 Seats Seats Seats 2005 2005 2008 2005 2008 2008 16% 16% Good Good 16% 16% Good 36% 36% Acceptable Acceptable 35% Acceptable 35% 24% Marginal 24% Poor Marginal Poor 24% 24% Marginal Poor 24% 24% 25% 25% Source: Thatcham Research News, April 2008 705/06 2006/07 72% EuroNCAP, the European body that assesses the safety performance of cars, is introducing a whiplash safety rating as part of their assessment. This will further encourage the development of whiplash prevention systems and raise consumer awareness of their importance in protecting from injury. Details of the latest EuroNCAP assessments can Correct be found Adjustment at www.euroncap.com. Correct Adjustment 28% 28% Incorrect Adjustment Incorrect Adjustment Proposals: 72% Vehicle manufacturers should continue work in developing and fitting whiplash prevention systems. Vehicle fleet managers should consider purchasing vehicles with highly-rated whiplash prevention systems. This should reduce the amount of accidents, thereby lowering insurance premiums.

TACKLING WHIPLASH: PREVENTION, CARE, COMPENSATION 11 Diagnosis and treatment For those who experience whiplash, it is important that they are diagnosed and treated correctly. Diagnosis The diagnosis of whiplash injuries is dependant on self-reported symptoms, and there are conflicting theories about how whiplash is caused and the effects of the injury itself. German research has shown that 20% of people report symptoms of whiplash even where there is not enough physical stress to cause an injury. This suggests that the psychological stress from the collision can cause the same symptoms. 16 This is compounded by factors such as high awareness of whiplash as an injury associated with vehicle collisions. 17 It is important that the medical profession use consistent methods of diagnosing whiplash and that the wider public are encouraged to seek an expert opinion if they self-diagnose whiplash, as neck pain is very common, even without an accident or injury. 18 Treatment Medical professionals have not yet authoritatively defined how best to treat whiplash. Developing and applying treatment guidelines is a priority area for Government and medics. In the past, those with whiplash have been told that the best way to recover from whiplash was to keep their neck still and rest. Medical evidence now suggests the best way to treat whiplash is to resume normal activity as soon as possible and keep the neck active. 19 The Whiplash Book, written by independent medical experts and sponsored by the ABI, provides a ready source of information on what to do if whiplash is sustained. It is also important that treatment takes place early, and accounts for psychosocial factors, as this can reduce recovery time for those with whiplash. 20 16 Castro W.H. et al (2002) No stress No Whiplash? Prevalence of whiplash symptoms following exposure to a placebo rear-end collision. Int J Legal Med 17 Gargan M et al, (1997) The Behavioural Response to Whiplash Injury, The Journal of Bone and Joint Surgery 18 Burton, McClune and Waddell (2002) The Whiplash Book, Stationery Office Books 19 Burton, McClune and Waddell (2002) The Whiplash Book, Stationery Office Books 20 Helen Merfield, (2007) http://www.cardiff.ac.uk/psych/unum/inthemedia/fulltexts/claims-rehabilitation-psychologicalaspects-mind-over-matter.html, Feb 2007

12 TACKLING WHIPLASH: PREVENTION, CARE, COMPENSATION Industry initiatives on rehabilitation Though its benefits are widely recognised, rehabilitation is often not provided early enough after an incident to maximise its effectiveness. Insurers and personal injury lawyers have developed a voluntary Rehabilitation Code which should be used for all personal injury claims. The Rehabilitation Code is designed to ensure that the claimant s need for rehabilitation is assessed and addressed as a priority, and that this is done collaboratively by the claimant s lawyer and the insurer. Insurers have agreed that, should a claim later fail, the insurer will not seek to recover any costs from the claimant of any rehabilitation that has already been provided. International experience In Norway, a number of insurance companies introduced a system for contacting people who reported neck problems after an accident and advised them of appropriate ways to treat the pain. Quick action reduced the need for longer and more intensive rehabilitation. It also ensured that the overall costs were reduced. This in turn resulted in reduced costs to insurance customers. 21 Proposals: The Government and the NHS should develop and apply clear guidelines on how to diagnose and treat whiplash. These guidelines should be promoted through a public awareness campaign, and supported by everyone involved in managing whiplash injuries. Information leaflets, such as the ABI-sponsored Whiplash book, could be distributed in sites such as general practitioner s surgeries, NHS clinics and Accident and Emergency departments. 21 The Whiplash Commission Final Report, 2005

TACKLING WHIPLASH: PREVENTION, CARE, COMPENSATION 13 Improving the compensation process If those with whiplash want to make a claim, it is important that the compensation process delivers this quickly and fairly. It is also important that those who try to make fraudulent claims are deterred, and prosecuted. Reforming the personal injury compensation process Insurers want to provide fast and fair compensation. However, the UK s current compensation system is not working: The current system takes far too long to get compensation to claimants it can take up to two years to resolve a motor personal injury claim; The current level of legal costs is completely disproportionate. For every 1 paid by insurers in personal injury compensation, an additional 88p is paid to claimant representatives in motor claims under 5000. The majority of whiplash claims fall in this bracket; It encourages the practice of solicitors paying for details of those involved in road collisions. Once the solicitor has paid a referral fee to organisations that collect such information, the solicitor has a vested interest in ensuring a claim materialises. The Government announced much-needed reform to speed up and improve the process, for straightforward motor personal injury claims. These proposals are: Early notification of claims, via a straightforward claim form; Early admission of liability; Reduced timelines for response between parties; Streamlining the process for agreeing compensation; Removing the duplication of work from the process; Fair fixed fees for claimant solicitors to reflect the amount and level of work needed in the new process. This should remove the practice of referral fees that exists in the current system, which can lead to those involved in accidents being pursued to bring claims.

14 TACKLING WHIPLASH: PREVENTION, CARE, COMPENSATION International experience In Finland, Norway and Denmark, a quicker and simpler handling process for whiplash related road accident injuries has been considered one of the most important measures for reducing human suffering and cost to society. 22 In Germany, courts use biomechanical evidence to assess whiplash and will not acknowledge an injury where this evidence shows that the collision alleged to have caused the injury involved speeds below 10km/h. 23 Proposal: The Government must ensure its reforms to the personal injury compensation system are implemented effectively to ensure everyone involved in the compensation process puts the interests of the claimant first and that the costs of the process reflect the work necessary to complete the claim. Tackling fraud It is difficult to accurately estimate the number of fraudulent claims. The Insurance Fraud Bureau (IFB) estimates that those detected fraudulent claims based on staged accidents represent 5% of whiplash claims, costing the insurance industry between 75-110 million per annum. 24 In addition there are opportunistic fraudulent claims, which are less easily detected and therefore difficult to measure. Fraudulent claims drive up premiums for policyholders, using Government and medical resources, and impede quicker access to justice for those who genuinely have whiplash. The insurance industry works to minimise fraud by gathering information about suspect elements of claims, and raising awareness about the impact of fraudulent claims on insurance customers. The recently created National Fraud Strategic Authority (NFSA) has adopted the recommendations of the ABI and the Insurance Fraud Bureau, by making staged motor accidents an early priority for cross-agency co-ordination in their fight against fraud in the UK. 22 The Whiplash Commission Final Report, 2005 23 G Chappuis, (2007); Number and costs of claims linked to Minor Cervical Trauma in Europe: Results from a comparative study by CEA, AREDOC and CEREDOC. 24 Insurance Fraud Bureau figures, 2006

TACKLING WHIPLASH: PREVENTION, CARE, COMPENSATION 15 The police recognise the pernicious nature of staged motor accidents: a number of forces have implemented local strategies, in partnership with the IFB, using sophisticated data mapping techniques to identify, investigate and prosecute organised gangs. Several fraudsters have recently been successfully prosecuted and imprisoned. The insurance industry regularly meets all stakeholders to maintain the fight against fraudsters. International experience In Ireland, the insurance industry ran a public awareness campaign on personal injury fraud. This campaign sought to highlight that insurance fraud was not a victimless crime, as it pushed up insurance premiums. They also launched a fraud hotline for the public to report suspected fraudsters. As a result, the issue was raised higher up the political agenda and prompted investigation of over 1,000 insurance claims in the first eight months of operation. Proposal: The National Fraud Strategic Authority should continue to work with the ABI, Insurance Fraud Bureau and all relevant stakeholders to seek to further enhance the UK s ability to detect and prosecute fraudsters.

16 TACKLING WHIPLASH: PREVENTION, CARE, COMPENSATION Conclusion Nearly half a million people in the UK report whiplash every year, and this is increasing. The Government, insurers, vehicle manufacturers, road safety organisations, solicitors, the NHS and rehabilitation providers need to work together to reduce the incidence of whiplash, and provide better care and faster compensation to those with whiplash. The ABI, Royal Society for the Prevention of Accidents (RoSPA), AA, Parliamentary Advisory Council for Transport Safety (PACTS) and Roadsafe call on the Government and other stakeholders to adopt the proposals in this document to reduce the incidence of whiplash on our roads.

For more information, contact: Association of British Insurers 51 Gresham Street London EC2V 7HQ 020 7600 3333 www.abi.org.uk