What to do if you suffer from whiplash symptoms
Whiplash is one of the most common injuries in traffic accidents. Unfortunately, determining liability in a whiplash case often leads to a long and complicated legal battle. GMW Lawyers, an innovative law firm located in The Hague, answers the 7 most frequently asked questions about legal liability in whiplash cases.
1. What is a whiplash injury?
Whiplash is a type of neck injury caused by a sudden movement of the head, where acceleration or deceleration injures the cervical vertebrae or the soft tissues (ligaments, muscles, etc.).
A “classic” whiplash injury describes a situation where the head strikes backwards and then forwards – resembling the motion of cracking a whip – but whiplash injuries can refer to all complaints that arise after a violent movement of the head, regardless of the direction (whether forwards, backwards or to the side).
2. What causes whiplash?
The most common cause of whiplash injuries is motor vehicle collisions. Whiplash can also be caused by injury during contact sports, accidents, falls, assaults and other traumatic events.
3. What are the symptoms of whiplash?
Common symptoms of a whiplash injury include neck pain, pain that radiates to the back or limbs, headache and stiffness.
Most people recover quickly from a whiplash injury but in some cases, whiplash can also cause long-term symptoms such as forgetfulness, concentration problems, psychological complaints or (chronic) fatigue. Such long-term problems may originate from the original injury but may only become obvious after some time. These are often described as “whiplash associated disorder”.
4. Who is liable?
The person who caused the whiplash is liable for the damage that is caused. To hold that person accountable, you will need to prove that they are liable.
In most cases, the perpetrator’s insurance company will be the party with which the victim communicates. Insurance companies frequently take the position that the victim’s complaints are not caused by the accident. This is particularly the case with cognitive complaints such as forgetfulness, concentration problems or fatigue. Such complaints can sometimes even be trivialised, which can be insulting to the victim.
If you are involved in such a battle, a personal injury lawyer is a must.
5. How does liability in a whiplash case work under Dutch law?
A clear inventory of the current complaints must be made and compared with the situation before the accident. This is done together with the medical advisor appointed by your personal injury lawyer and the treating physician. Causality (the cause and effect) must then be determined.
There are two types of causality: medical and legal. Medical causality requires a medical explanation for the consequences of whiplash, whereas legal causality is based on a “plausibility judgement” – in other words: is it plausible that the complaints would have been revealed without the accident?
The Dutch Supreme Court has ruled that in whiplash cases, the legal approach to liability should be used. This ruling applies in district court cases too, where the legal interpretation of the facts (not the medical) is decisive in establishing a causal connection.
6. What damage is compensated for whiplash?
If liability is recognised by the perpetrator or if it is determined by a judge, then three types of costs may be eligible for reimbursement:
Costs directly incurred due to the whiplash injury
For example, medical costs from the accident, damage to your clothing or car or the costs of extra domiciliary help needed during recuperation.
You could also be reimbursed for lost income (should you be temporarily unable to work after the injury).
Lastly, you could receive compensation for your pain and suffering (also called immaterial damages). This type of compensation refers to more than physical pain; it also encompasses emotional damage suffered, such as grief, loss of enjoyment and psychological injury.
7. I have whiplash, what steps should I take to hold someone liable?
Here are the steps you should take when you want to hold someone liable:
Start collecting evidence immediately. Complete a claim form immediately after the accident and have it signed by all parties involved. Take photos of the damage or of the location. Ask any witnesses for their details.
Go to a doctor
Go to a doctor immediately to ensure your medical file is clearly updated with explanations. Notes from specialists can be added to this record. Even if you have only attended the emergency department of a hospital, it is important to keep this medical record as complete as possible.
Get a lawyer
Enlist a personal injury lawyer to hold the perpetrator or his/her insurer liable. Your lawyer will guide you through the entire process.
Don't forget about the costs
Keep track of the costs you incur throughout the process. From borrowed crutches to lost income; there are many items that could eventually be included in the possible compensation.
Have you suffered a whiplash injury? Would you like to know more about your legal rights with regard to liability and compensation? Contact GMW lawyers for clear advice from experts in Dutch personal injury law.