There is something ever so slightly comic about the expression “whiplash”.

Think of Charlie Boorman whipping himself with a bull whip.

F*** f*** f*** was all he could say! I hasten to add this wasn’t pleasure. He just couldn’t get the whip flick right – timed right, that is. Unfortunately for Charlie, each time he tried, it was his back that got the crack. The woman teaching him – a real cowboy-person – couldn’t stop laughing….

And how about, the whore of Streatham, Cynthia Payne, Miss Whiplash. And the new Sherlock Series 2, episode 1 – A Scandal in Belgravia – The Woman, Sherlock called her, who introduced herself to Sherlock in the naughty naked nude (Ian Drury lyrics, in case you asked) – although her specialist subject was a more exotic medicine for the upper classes (including Royals) that involved Cynthia Payne-like pain, nudity being, well, for Sherlock….

Anyway, I digress.

Whiplash. The 21st century equivalent of Spiv-sold knocked-off luxury goods from WWII. Something everyone wants to benefit from – for the money, that is – but no one wants to be associated with.

There has been a concerted campaign. You can’t turn any corner without that load of opprobrium balanced just above head height dripping down like liquid stinking silage. That is, if you’re a lawyer (or have the misfortune of being anything to do with the law).

Yes, its happening again. This time it’s the Parliamentary Transport Committee fulminating. Not for the first time.

Its like a glass of coke. You pour in the coke just a little too fast. You watch the bubbles, the brown froth, shoot up, then dribble down outside the glass, making a horrible sticky mess on the table.

It all happens too quickly.

You watch with a vague hint of irritation, knowing you can’t prevent it, and knowing its going to be your job to get out the squirty bleachy toxic plastic-bottled fluid to wipe up the left-behind goo.

The Parliamentary Transport Committee will say stop talking nonsense. We’ve thoroughly looked into the vexed, and tortured issue of whiplash claims. They’d say they gave it all the time it warranted. They’d say their conclusions are considered and penetrating.

And surely they have given it time.

So, it must be asked – asked with in a loud shouty tone of voice – how, then can they have come to conclusions that are so utterly misjudged? How can they be making recommendations that apply poorly conceived ideas at the wrong end of the whole process that is a “whiplash claim”? How?

Because, I fear, they have bought wholesale the insurers line – which is not all wrong. If you read the insurers written evidence you’ll see the Committee has – in their report – used language remarkably similar to that used by the insurers.

And look at who they talked to, who they took evidence from, whether oral or written – not, I think, a balanced cross section of those involved in the “whiplash claims” business. Infact, a shockingly unbalanced selection.

Please do not imagine I’m an apologist for the “Whiplash claims” business. What the insurers say does have substance. But, it’s slanted, sometimes very slanted, in favour of how the insurers profit, rather than how people may perhaps find a small measure of justice.

Below is the conclusion of the Transport Committee:

Where someone can demonstrate that they have suffered an injury, including whiplash, as a result of a road traffic accident for which they were not fully liable they should be able to claim and receive compensation. However, in relation to whiplash, we are not convinced that a diagnosis unsupported by any further evidence of injury or personal inconvenience arising from the injury should be sufficient for a claim to be settled. In our view, the bar to receiving compensation in whiplash cases should be raised. If this were possible by means of an insurer taking a case to court and establishing new case law we suspect this would already have happened. We note the Government’s argument that its legal reforms should reduce the money in the system and encourage insurers to defend claims more vigorously. If the number of whiplash claims does not fall significantly once these changes are implemented there would in our view be a strong case to consider primary legislation to require objective evidence of a whiplash injury, or of the injury having a significant effect on the claimant’s life, before compensation was paid. (Paragraph 8)

There are so many misconceptions contained in this statement it’s hard to know where to start.

However, let’s look at the word “evidence”.

The MPs opine:

we are not convinced that a diagnosis unsupported by any further evidence of injury or personal inconvenience arising from the injury should be sufficient for a claim to be settled.

Although in their conclusion the MPs don’t use the word “objective”, they really want to. “Further evidence” doesn’t quite hit the spot. It doesn’t quite do the sound bite thing, the definition and summary of the whole conclusion in a few bare words.

Earlier in the report the word is used. It has the quality of a silver bullet. The whole issue has been nailed, killed, buried once and for all. Guess who came up with the word? Jack Straw. A man with respect to whom evidence of integrity is in short supply.

The committee however are impressed by Jack Straw. They quote him saying:

compensation for whiplash should only be paid where “clear objective evidence of real injury”

“Clear objective evidence” – those are his words. “Clear objective evidence”.

That’s the killer phrase, the summation of incisive analytical investigation, the definitive insight.

This is what their rather looser sound bite actually means. “Further evidence” equals the need for “clear objective evidence”.

Just to remind anyone who may not have read any of my previous comments on Jack Straw. He, yes, he – Jack Straw – was the architect, the Government’s appointed the-buck-stops-with-me man – whose wizard-like brain created the free market of Claims Management Companies – the free market for the commoditisation and sale of personal injury claims by middlemen. Yes, Jack Straw.

Check out the dates he was in charge of the Ministry of Justice if you doubt me. Also, just out of interest, check out the cost of the new MoJ building.

And so that the point isn’t missed, I see that Committee has used the very interesting stats showing that casualties reported to the police and those made to the Compensation Recovery Unit are going in opposite directions – something I’ve also written about elsewhere.

Anyway, these two key words: objective and evidence. Difficult words. Not difficult in the sense of their usual usage and ordinary meaning, in the sense of their perhaps – how shall I put this – their fundamental meaning. Taking into account the fact that the words are being used as battering rams aimed at smashing down the rotten structure of the “whiplash claims” business, I think a careful deconstruction of what they actually mean is merited.

An objective statement would be self-evident. It would speak for itself. It would not be likely to need argument based on evidence because the evidence would be so strong that it would be hard to formulate argument that could contradict it.

For instance, water boils at 100 degrees C.
Dogs bark.
Millions of people watch X-Factor.

Objective means seen as an object. Beyond doubt. Certain. It’s not a word that’s qualifiable. You can’t have degrees of being objective.

Hence: if objective is applied to evidence, no one need think further, the job’s done.

The word “evidence” by contrast is about possibility, or theory. On the one hand most people would be likely to agree that there is no evidence for the existence of God. By contrast, there is strong evidence that evolution describes how species developed from amoeba to homo sapiens.

Evidence is required to establish proof. It’s required to prove a possibility, or a theory. Or an argument. Or a claim.

Evidence is rarely objective. In any field, let alone the law. Evidence is about likelihood, plausibility, probability, credibility.

Evolution is a good case in point. The theory stacks up based on the evidence, but certainty, no.

Or the Greenhouse Effect. There are computer servers full of statistical evidence. However, certainty there is not. It’s not, as it were, an objective truth that mankind has caused the Earth to warm up (as opposed to the fluctuations of natural phenomena that does not require the intervention of mankind, for instance).

A further assumption lurking beneath the incomplete conclusions of the Transport Committee relates to medicine. This is because the evidence lawyers depend upon to prove whiplash comes almost exclusively from doctors.

It follows that a close look at the reasoning of medics must be considered.

A brief aside, however, is required.

Medics are another exploitative aspect of the “whiplash claims” business. One that’s not even mentioned in all verbiage on referral fees. Why?

Yet another example of the woeful lack of breadth of this whole debate.

Back to medicine. How do doctors make diagnoses?

In order to do this I’m going to tell the story of a case.

The Claimant – a young man in his 20s – was a passenger in car that driven at 50/60mph into a stationary lorry. It was at night. It was a tragic mistake on a dual carriageway. The Claimant’s lucky to be alive. He suffered numerous injuries the most serious of which is to his hip and pelvis. This required surgery.

The Claimant also complained of pain and weakness, as well as some odd nefarious symptoms in his foot and ankle – coldness, numbness of the skin.

The doctors who sorted out his pelvis/hip didn’t want to bother with the foot/ankle. It was sufficiently intact so they didn’t ask any more questions.

But the foot/ankle didn’t get better.

4 years after the accident nerve conduct tests were done. These produced evidence – that key word – evidence – supporting a neurologist’s opinion the foot/ankle symptoms were caused by a sciatic nerve lesion.

Evidence. Not objective definitive conclusion. Not certainty. Likelihood. A diagnosis.

The neurologist said, look here people, I think my diagnosis is right, but there might be another cause. My differential diagnosis based on the evidence is that the sciatic nerve damage in the pelvis/hip is the cause of the foot/ankle symptoms but – but – and this is the bit about objective evidence – it could have a circulatory cause – a vascular cause. See what a vascular expert says.

We are yet to hear what the vascular man says.

The reason for the case story is to show that even when there appears to be good evidence in support of a medical diagnosis, there is no certainty – the diagnosis is not “objective evidence”.

This may be surprising. Afterall, we have the nerve conduct tests. These provide an “objective” description of the functioning of the nerves. Yet, this is not definitive of the medical problem.

So, the methodology of medicine isn’t about “objective evidence”. It’s about probability, likelihood, proof.

Let’s go back to the MPs.

They say they want to make it harder for Claimant to bring whiplash claims.

We recommend that the bar to receiving compensation in whiplash cases should be raised.

Throughout all aspects of law – all kinds of disputes that go to law – evidence is produced to support arguments. That evidence is almost always “subjective”. It is presented as a way of a person or a business supporting their case. Whether this is about injury or loss, or has to do with some other form of dispute, for instance, why one parent should have custody instead of another, or why a child should go into care, or whether X killed Y, or whether the Government screwed up a consultation process.

None of the evidence is “objective”. Instead, it is interpretative. And it usually comes in the form of witness statements. People – you and me – stating what we believe. Usually with reference to circumstances to add weight to our testimony.

Evidence is sometimes strong and sometimes weak. What I as a lawyer regard as good evidence, another lawyer, and, more importantly, a Judge, may interpret wholly differently.

This is what the legal process in disputed cases is all about. It has been thus for centuries. It was thus even before there was any kind of formalised English law. Throughout all jurisdictions as long as there have been jurisdictions, disputes that go to law are about evidence. The weight of evidence. And they are about Judges evaluating that evidence.

And, once again, there is a yet further aspect to this debate that the Transport Committee fails to mention, let alone consider: the Judiciary.

Anyone who works in the “whiplash claims” business will know that in the last 5-10 years the Judiciary have gradually become less and less sympathetic with Claimants. 10 years ago insurers didn’t want cases to go to trial because it was odds on the Judge would favour the Claimant. Now, it’s the opposite.

Ignoring completely the Transport Committee’s flawed reasoning, their job has already been done – insurers fight a far higher percentage of cases than they used to, and they win far more!

So, frankly, what’s the problem?

The problem is not anything at all to do with evidence or proof. The problem is at the other end. Incentivisation. The CMC culture. The explosion of encouragement which Jack Straw’s changes within the legal sector ignited. Jack Straw. The man’s whose silver bullet sound bite is at the heart of the Committee’s conclusion recommending raising “the bar”.

What’s the answer? Wholesale dismembering of the CMC culture, and the complete removal of referral fees. The outright banning of the sale of a prospective legal entitlement to bring a claim.

Suggesting that you can reduce the volume of whiplash claims by raising “the bar” is completely misconceived.

The reality is that the MoJ must face its own failure to create, and put into effect, a framework that manages CMCs and the culture they propagate.

We saw this in the 1990s with the Claims Direct/TAG fiasco.

The MoJ authorised CMC culture of 2007 onwards is a depressing story of the failure of Government to learn from history.

It’s also a lesson that permitting non-lawyers to effectively direct lawyers how to do business is to undermine the very thin line that lawyers tread to try to provide a service that is ever so slightly averse to the evil which is that if the law is all about money it’s a degraded kind of law, although perhaps in the Blair/Brown/Cameron society, its what we deserve.

John Holtom

The image I’ve used for this post is borrowed from Virgin Money – here’s the attribution/link

If Virgin Money have a problem with my re-use of their image, I’d of course be more than happy to remove it. However, since what I say in this post does not contradict their own motor insurance marketing, and I am in no way seeking to profit from their name or marketing, perhaps they won’t take issue with the point.

Article posted on Monday, January, 23rd, 2012 at 9:21 am

Tags: Evidence, Jack Straw, MoJ, Objective evidence, Parliamentary Transport Committee, Silver bullet, Whiplash Committee

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