The Phenomenon of Whiplash and the Compulsory Third Party Liability Insurance: An Interim Report from the Netherlands

Abstract

The increasing degree in which neck injuries are being suffered as a result of traffic accidents gives Dutch motor insurers rather a lot of worry (and head sores). Not only is number of neck injuries (hereafter nonetheless to be referred to as on increase; also amounts involved constitute a considerable part (approximated at 35%) of total financial burden of motor personal injury claims. In other countries whiplash is also a for insurers; in Europe that is especially case in Scandinavia and Germany. Remarkable, however, is that in these countries whiplash is more of a quantity problem (a lot of smaller claims), whereas in Netherlands it is a quantum problem. After all, in Netherlands we regularly come across sizeable claims, sometimes based on 100% permanent disability; that Dutch situation differs from in surrounding countries could very well be helped along by contemporary views on legal position of victim. Because, in whiplash cases we are generally dealing with medically (hardly) nonobjectifiable injuries (often with only subjective complaints such as neck pains, headaches, difficulties with concentration, irritability and sleeping problems; see also diagram regarding a possible classification Table 2, chapter 5, and reasoning from dictum the onus of proof rests with claimant, this could put victim in a difficult position to prove his case. In practice this is not actual, however, especially in view of broad interpretation of concept of causation. It is therefore often liable party (i.e. his third party liability insurer) who has to prove contrary. In this article various aspects of whiplash phenomenon will be discussed. In chapter 2 some figures and other statistical material will be described; both from Netherlands and from abroad. In chapter 3, three questions will be reviewed from a Dutch