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For the most part, whiplash neck injury claims in the UK are made on the basis of subjective reports of injury. In effect, the patient becomes the expert in all but the most complex cases. Many such claims are settled each year; the cost of contesting them being out of proportion to the damages. Fraud and exaggeration are commonplace. Proving fraud is almost impossible in individual cases.
There is good evidence that if the balance of probabilities test was used as intended, recent inflation would be reversed and exaggeration successfully challenged. We have developed a tool that if accepted will assist the courts in forming an objective view of subjective evidence.
A small proportion of claims become complex, involving unexpected degrees of disability and are disproportionately expensive to settle. In these cases it would be cost effective to intervene in some way early on in the case. Adverse prognosis can be objectively predicted within 4 weeks of the index event.
Just as with generic and specific causation there should be a generic mitigation test: if it doesn’t work in general then why should it work in specific cases? If it doesn’t work in general then why should it be regarded as a reasonable self- prescription? Why should insurers pay for a mitigation expense that doesn’t objectively contribute to indemnity?
Re: Liability (Oxford) Ltd have developed tools to convert subjective information into objective tests of diagnosis, causation and prognosis and the indemnity effect of medical interventions. The tools would work well if medical exams were not subject to commercial pressures.