Identifying the damage

It is pain and suffering and loss of amenity of life, as well as economic sequelae, caused by a tort (usually arising from a breach of care, but also on occasion by intentional acts) which are compensated by the civil courts. They need to be established by admissible evidence on the balance of probabilities. Thus, proof of the existence and the extent of an injury, as well as what caused it, are subjected to forensic scrutiny, including assessment of expert evidence,¹ to ascertain the legitimacy of a plaintiff’s claims of injury.

A difficulty that arises with asserted whiplash injuries is that, frequently, whiplash cases come to court without clear concomitants of objectively measurable physical injury. As Underwood J put it in Hoare v Pritchard [1997] TASSC 94 at p1: ‘The plaintiff suffered a “whiplash” injury to her cervical spine. As is so often the case with this injury, there is neither clinical nor radiological evidence of physiological damage’. This can raise the ‘index of suspicion’ and result in judicial cynicism in the face of expert evidence from medical practitioners who hold legitimately differing views about the ongoing symptomatology of the plaintiff and its aetiology or aetiologies.

There have been many expressions of judicial approach on the subject. Frequently, defendants over the past decade have called neurologists, general surgeons and neurosurgeons to opine that, in the absence of objective radiological evidence, it is unlikely that a plaintiff’s traumatic injury, which was initially a whiplash injury, could be causing the ongoing impairment asserted by the plaintiff unless such pain is psychiatric in nature or is the subject of malingering. By contrast, plaintiffs have tended to call general practitioners, chiropractors, osteopaths, physiotherapists, rehabilitation physicians and pain management practitioners to contend that their whiplash injuries have resulted in an ongoing restriction of movement, functionality and an experience of pain. The ideological divide between such camps of health practitioners has been deep. However, an end to this unfortunate difference of approach may be signalled in Guerrero v Fukuda, 2008 CanLII 49158 (ON SC) at [3]-[5], where Little J of the Ontario Supreme Court observed that:

Typical case example

The decision of the Tasmanian Supreme Court in Luttrell v McLennan [2005] TASSC 79 remains orthodox for Australian law. The 43-year-old employed plaintiff was driving her motor vehicle, which came to a halt in heavy traffic. The defendant negligently drove into the rear of her vehicle, causing what she asserted was a whiplash injury. She sued for damages. She was admitted to hospital, examined in an outpatients’ department and released on the same day with a cervical collar. After the accident she maintained that she was unable to return to full-time employment. She asserted that she continued until the trial to experience pain and discomfort on the left side of her neck, the left shoulder, the left arm, the left hand, and the ring finger and little finger of the left hand. She developed a tendency to lift the left shoulder to make herself more comfortable. According to her account, her level of pain and discomfort fluctuated but were exacerbated by exertion, or by repeated minor physical movements while maintaining a fixed physical position. Since the accident she was prescribed anti-inflammatory medication and pain killers. In the aftermath of the accident, she asserted, her symptoms interfered with:

The plaintiff received treatment from a variety of medical practitioners, including family doctors, rheumatologists, anaesthetists, pain management specialists and others. Her principal witness diagnosed her as having suffered a whiplash injury which led to an ongoing chronic pain condition. The principal witness for the defence, by contrast, opined that the plaintiff had no objectively demonstrable physical injury and that it was the legal process and her attitude that were precluding her from rejoining the workforce.

Justice Blow preferred the evidence of the plaintiff’s medical experts and expressed concern about the inclination of the main defence expert to trespass outside his area of expertise into the domains of psychiatry and psychology. He accepted that most patients who suffer whiplash find that their symptoms resolve relatively quickly but found that this fact did not mean that the plaintiff did not continue to suffer from such symptomatology or that the symptoms which she did still experience had another aetiology. He ordered damages of A$323,000 for the plaintiff.

Credibility dilemmas

A corollary of the absence of objective evidence in many whiplash cases is that courts are propelled into assessing the credibility of the plaintiff’s account, recognising that litigants will have a financial motivation either to fabricate or to exaggerate (deliberately or unintentionally) in order to optimise the financial outcome from their compensation litigation. A result is that the assertions of plaintiffs both to courts and to forensic assessors, and even to treaters, have come to be examined with particular care to evaluate consistencies and their obverse. This raises the issue of both the reliability of the history and narrative of plaintiffs and the probative value of the opinions held by professionals who give evidence to the court. Such opinions, inevitably, are heavily dependent upon what they are told by treaters’ and third-party assessors’ patients, as well as upon the symptoms that they identify. When the presentation of patients to third-party assessors and even to those providing them with treatment is taking place in the shadow of the courts and patients are aware that everything that they do or say may be the subject of the drawing of inferences, there is the risk of distortion.

Such distortion has a number of components. There is the risk that a plaintiff may consciously or unconsciously embrace a sick role in order to enhance their claim. Litigation tends, in most jurisdictions, to be a once and for all exercise, with plaintiffs having just the one opportunity to prove their case. This can propel unscrupulous plaintiffs to fabricate or deliberately exaggerate and it can also encourage genuine plaintiffs to focus more upon their state of unwellness or pain than upon what they can do to relieve their symptomatology and recover. To this extent the litigation phenomenon can militate against wellness, inhibit recovery and be counter-therapeutic.

In addition, there is the risk that in what is a stressful situation, in order to communicate effectively their symptomatology, patients may over-describe or over-emphasise their experience of pain and their levels of impairment. This can arise from a concern that without such a presentation, their real experience may be discounted or not adequately taken into account by treaters, assessors and fact-finders alike.

As well, there is always the potential for plaintiffs to attribute to a specific incident a variety of the adverse aspects of their lives, resulting in excessive allocation to the one perhaps tortious incident (e.g. a traumatic motor vehicle injury) a range of symptoms which, strictly speaking, may not be clinical sequelae and may have independent aetiologies. This is a question of causation in which indirect connections and influences can complicate what might otherwise have been a more straightforward clinical course. Disentangling the strands of causation is ultimately more of a legal exercise than a medical one but the vicissitudes of what can be unhappy lives, made worse by a traumatic injury, can be difficult to unravel, especially in the environment of litigation.

In Vlad v TAC [2002] VCAT 1298 at [63] a number of these issues arose. Member Preuss of the Victorian Civil and Administrative Tribunal heard extensive expert evidence about a variety of conditions said to be suffered by an applicant for compensation. Ultimately, she rejected key evidence for the applicant for compensation, holding that the expert’s evidence carried little weight:

In the search for yardsticks to evaluate plaintiffs’ credibility, a number of factors can be resorted to by courts, either covertly or explicitly. There is the risk of what Perlin,² in another context, has called ‘pretextuality’, in which assumptions and ideological positions significantly influence decision-making. The hint that this is occurring can emerge from the language employed by decision-makers. Thus, in a case in the Australian Capital Territory (Spasovska v Nominal Defendant [2005] ACTSC 2 at [49]), Master Harper found that ‘the plaintiff comes from a cultural and ethnic background where it is common to find an abnormal perception of pain and abnormal emotional reaction to trauma and injury … Queanbeyan has a large ethnic Macedonian community’. He appeared to attach significance to this factor—detrimentally to the interests of the plaintiff. Another way in which such ‘moral biases’ can affect the deliberative process can be in the expectation that injured plaintiffs will make active attempts to ‘recover’ and ‘rejoin the workforce’ to return to ‘breadwinner’ status for their families, rather than become resigned to their pain or to ‘assume a sick role’.

Ongoing symptomatology

A challenge for plaintiffs is to prove the continuing symptomatology of whiplash injuries in light of the fact that the preponderance of clinical opinion is that most such injuries improve relatively quickly. This issue was summed up by the NSW Court of Appeal in Werner v Krahe [2002] NSWCA 168 at [12]:

A risk exists that because most whiplash injuries resolve within two years, decision-makers will approach their fact-finding task unduly critically or cynically when litigants assert ongoing symptomatology in the absence of radiological corroboration. From time to time, witnesses for defendants/insurers refer to literature asserting that in countries which do not have schemes for compensation, whiplash injuries resolve promptly, in an attempt to bolster the argument that a plaintiff is either malingering or engaging in an attempt to hoodwink the decision-maker/s (e.g. see Horvath v Rajic [2001] QDC 358). However, this tactic is generally found by courts to be of limited assistance when decisions need to be made in specific cases.

The risk of undue suspicion on the part of decision-makers can manifest in terms of assessment of credibility or the drawing of adverse inferences from the nature of the traumatic incident asserted to have precipitated the injury. An article by Freeman et al.³ is commonly cited on behalf of plaintiffs (e.g. see Nash v Berton [2001] SASC 94):

Related posts:

Epidemiology of whiplash associated disorders Potential role of stress systems in the pathogenesis of whiplash associated disorders Future directions Case descriptions Neuromuscular dysfunction in whiplash associated disorders The evidence for pathoanatomical lesions

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