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Whiplash in Europe

In the Netherlands, whiplash has been a topical and much-debated subject for many years. How do other countries compare? This article provides an insight into whiplash practice in other European countries and specifically discusses recent developments in Switzerland, which, until recently, awarded by far the highest compensation amounts in whiplash claims. The source of inspiration for this article is our own experience with handling international claims, contacts with foreign Green Card Correspondents and the information they have provided.

Recent developments in Switzerland
Guido Denters – Bodily Injury Claims Manager at Amlin Europe, the Netherlands


In the Netherlands, whiplash has been a topical and much-debated subject for many years. How do other countries compare? This article provides an insight into whiplash practice in other European countries and specifically discusses recent developments in Switzerland, which, until recently, awarded by far the highest compensation amounts in whiplash claims. The source of inspiration for this article is our own experience with handling international claims, contacts with foreign Green Card Correspondents and the information they have provided.



“This article is a translation of an original Dutch text published in the December issue of the PIV Magazine. PIV (Personenschade Instituut van Verzekeraars) is a foundation in the Netherlands established by Liability Insurers which objective is to improve the quality of the process of handling bodily injury claims.

The article describes the topic from a Dutch perspective in a European context and it can be used  for further discussion on the subject. The Netherlands seems to have taken over recently from Switzerland the dubious honour of being the most expensive country for Whiplash Type injuries. Furthermore the Dutch Insurance Industry is struggling since many years with the legal and medical aspects of these type of injury claims, which has a negative impact on its reputation. For that reason PIV has put the subject explicit on its agenda for 2014”. (Red)

CEA comparative study into whiplash 2004
In 2004, the CEA (Comité Européen des Assurances) carried out a comparative study into minor cervical trauma claims.1 The background to this study was a sharp increase in the number of cervical injury claims European Motor Insurers registered since 1999. The study involved ten countries, including the Netherlands and Switzerland.

“Minor cervical trauma” was defined as an injury to the neck, caused by an acceleration/deceleration mechanism without neurological complications and without detectible injuries to structures such as the bones, nerves, ligaments and intervertebral discs. In the Netherlands and the UK, it is referred to as whiplash, while in German-speaking countries it is known as Schleudertrauma or Trauma der Halswirbelsäule (HWS) and in France it is called a coup du lapin (according to Larousse: “sharp blow to the neck”) or coup du fouet.

The table below shows that, at approximately €35,000.00, the average costs for a whiplash claim in Switzerland are by far the highest. At €16,500.00, the Netherlands is second, followed by Great Britain, France and Germany. In these countries, the costs are considerably lower, with average compensation sums of € 2,500.00 to € 3,000.00. Furthermore it appeared that whiplash claims make up a much higher percentage of the total annual costs of personal injury claims in Switzerland, the Netherlands and Great Britain than they do in Germany and France. The high percentage in the UK is due to a high incidence of relatively small claims.2

 

Share of cervical trauma in the total costs of personal injury claims (%)

Average costs per claim for cervical trauma

Switzerland

40.0

35,000

Germany

9.0

2,500

Finland

13.0

1,500

France

0.5

2,625

The Netherlands

40.0

16,500

Great Britain

50.0

2,878

The CEA survey was carried out some time ago and has not been repeated since. Own personal experiences and those of other Dutch insurance companies suggest that the situation is more or less unchanged today. In the event of a whiplash trauma, Great Britain, France and Germany assume that there will be a period of symptoms and incapacity for not more than a few months – an assumption that may or may not be based on a medical appraisal. Only in the Netherlands and up to recently also in Switzerland it is accepted that a whiplash injury can cause permanent disability.  This resulted in expensive claims in relation to future Loss of Earnings, permanent need for household help, etc.
In Switzerland now there have been recently some remarkable Court decisions which has caused a drastic change in the situation of whiplash claims.


The Swiss situation


Historical perspective
Until recently the judgment of the Bundesgericht (Swiss Supreme Court) of 1991 was regarded as relevant case law.3 In this judgment, the Bundesgericht concluded that, if – after an accident – a claimant has been diagnosed with a whiplash and he shows the typical symptoms of such injury a causal relation between the accident and these symptoms can be assumed. As typical symptoms are mentioned: Diffuse headaches, dizziness, concentration problems, nausea, fatigue, vision problems, irritability, depression, character changes, etc.4

This judgment used to be the legal basis for the settlement of all whiplash claims in Switzerland. It was not necessary to provide objective medical evidence for a whiplash claim; Sufficient was to proof that medical assistance was sought after the accident from a GP or A&E department and whiplash symptoms (HWS, Schleudertrauma) were diagnosed. Swiss Social Disablement Insurers would normally adopt these findings and almost automatically the claimant would receive a disability benefit. As in the Netherlands, Switzerland has a social security system which include monthly benefits for people who are not able to work as a result of an accident or illness. In the event of disability for work following a traffic accident caused by another motorist, Social Disablement Insurers seek recovery of these benefits from the Third Party Liability Insurers. Compensation for personal losses and Pain & Suffering  claimant will receive directly from these Insurers.5 The social insurers’ assessment of disability was decisive for the legitimacy of the subrogation claim and the claim for personal losses in relation to the disability at issue.

Criticism from Science, Insurance Industry and Society
The judgment of the Bundesgericht was immediately met with controversy. As the number of claims against both Social and Liability Insurers dramatically increased many – sometimes heated – debates arose. A pioneer in these discussions was – among others – Rolf P. Steinegger, a Lawyer who predominantly represented Liability Insurers. He was of the opinion that the judgment opened the floodgates of a “Whiplash Industry” of commercially interested physicians, therapists and lawyers, who would ruin the Swiss social security system. Others spoke of Switzerland as a “Whiplash Paradise” where the average award for such an injury was 23 times higher than it was in Finland.6 These statements were apparently based on the 2004 CEA study, as was the argument that even the Netherlands, which ranked second, paid only half as much compensation as Switzerland did. As another negative effect of the judgement was mentioned the rapidly growing number of disabled people who would be stigmatized and excluded from society. From Science corners, criticism came from – among others – Professor Erwin Murer, an Employment and Insurance Law Professor at Freiburg University, who argued that the affordability of the social system was in danger. In 2005 it was estimated that Swiss Motor Insurers paid € 500 Million Euros per annum for whiplash claims.7

Changes since 2008
The judgment of 1991 did last until 2008. Since then, the Bundesgericht has passed several judgments in which it has distanced itself from the basic principles set out in 1991.8
The first judgment in this series was that of the Bundesgericht of 19 February 2008.9 This case concerned a subrogation claim from Social Disablement Insurers following an accident involving an Insured who sustained a whiplash injury. The court surprisingly decided it would not accept disability claims anymore where symptoms are at issue for which objective medical evidence is not available. The judgment did not clearly provide the reasons for this sudden change of opinion. It did however refer in detail to the discussions about the subject in medical and legal literature and the press. Furthermore the judgment specifically mentioned another argument from the opponents of the “old” regime who argued that without a need to provide objective medical evidence the system “offers potential for misuse”.

Since 1991 Third Party Liability Insurers almost automatically followed Social Insurers in their medical assessment of disability. Following the 2008  judgement they thought, every whiplash claim could now simply be rejected. This resulted in a new Court decision in 2010 concerning another case. Swiss Courts use a system of “Adäquater Kausalzusammenhang (adequate causation) for establishing a causal relationship between an accident, the injuries allegedly sustained and the disablement for which benefits are claimed.  If a causal relationship was established in accordance with the criteria of the system, the claimant would be entitled to a benefit for disability. The Bundesgericht now concluded that though the principle of causation is the same both in social insurance as in civil liability, the assessment criteria might be different as in civil liability “Reasonableness and Fairness” is the basis of the system. This implies, that under certain circumstances, in a liability case a claimant might be more successful than in Proceedings against his Social Insurers. In another case the same year the Supreme Court however established clear restrictions and limitations.10 The Court argued that in principle a whiplash injury cannot result into a claim for a long-term or permanent physical impairment and criteria for assessing medical evidence in case of a whiplash will be tough.

The consequences of this change were significant: in the old situation, visiting your GP after an accident, mentioning typical whiplash symptoms as a reason for not able to work would more or less automatically have entitled you to disability benefits. And as the Third Party Liability Insurers would follow the assessment by Social Disablement Insurers you potentially could claim for future Loss of Earnings until the date of retirement.

In the new situation, whiplash patients no longer can claim benefits from Social Disablement Insurance and will only be successful claiming compensation from a Third Party Liability Insurer if they can submit medical evidence of the injury. Furthermore this evidence has to meet strict requirements and a multi-disciplinary medical appraisal is often required. It might be the case that medical examinations from no less than six different disciplines are needed, including a psychologist, a neuropsychologist, a reumatologist, an internist, a neurologist and a psychiatrist. These medical experts may only report findings based on their own expertise and will have to provide clear and objective motivation in case they are of the opinion that a permanent injury is at issue whereas there are no objective findings. Strict rules and criteria for such examinations were worked out and described in extensive detail in several other judgments since 2008.11

The Swiss Personal Injury Industry was of course seriously hurt by these changes since 2008. Personal Injury Lawyers, rehabilitation centres and therapists have lost a substantial part of their business and are now looking for alternative business. News from the Insurance Industry indicate that after the “Whiplash Culture Episode”, the focus is now shifting to burn-outs, considering the number of cases where such disease has been diagnosed rapidly growing since 2010. The symptoms of a “burn-out” are very similar to those from a whiplash injury and are still accepted by Social Insurers for claiming disability benefits.12

Conclusion
An update of the CEA survey will probably show the Netherlands on top of the table, taking over the top spot from Switzerland, providing in Europe the highest compensation in whiplash cases. This is major concern for the Dutch Insurance Industry which is eagerly looking at other countries for solutions.  

  1. Minor Cervical Trauma Claims. CEA 2004.
  2. The AXA Whiplash Report of July 2013. In this report, AXA provides detailed information on the practice in the UK and the problems it creates for the affordability of the system.
  3. BGE 117V 359 and Verscharfte Schleudertrauma-Praxis – Stiefe Bise von vorne oder Hinten. Rolf Steinegger HAVE 4-2010.
  4. “Beschwerden wie diffuse Kopfschmerzen, Schwindel, Konzentrations- und Gedächtnisstörungen, Übelkeit, rasche Ermüdbarkeit, Visusstörungen, Reizbarkeit, Affektlabilität, Depression, Wesensveränderung usw.”.
  5. Coupe du Lapin, évolution de la jurisprudence. Alex Fischer Dekra CH 11-1-2013.
  6. Die Schleudertrauma-Industrie. Rolf Steinegger Die Bund 17-3-2011.
  7. “Störung der Krankheitsindustrie”. Jorg Stiener, 25/9/2010, Berner Zeitung. This article contains several quotes of Professor Erwin Murer.
  8. “Wichtige Entscheide im Haftpflichtrecht”. Bruno Haflicher Pladöyer 5/12.
  9. BGE 134V109.
  10. BGE 136V279.
  11. Die gerichtlichen Vorgaben an polydisziplinäre Gutachten bei Schleudertraumen und äquivalenten Verletzungen. Thomas German and others, 2010.
  12. According to the journalist Jorg Steiner in his article mentioned under 5.