As this is an extremely common injury from motor vehicle accidents, I felt that the subject of whiplash required further elaboration. The issue of whiplash is a complicated one. Unlike injuries that involve broken bones or visible cuts or bruises, whiplash usually consists entirely of self-reported injuries. This puts the court in a position where they are expected to judge the severity of an injury based largely on the credibility of the injured party. The courts have struggled with this task for decades, as illustrated in this, still leading, case from 1982:
Price v. Kostryba, 1982 CanLII 36 (BC SC)
The courts in this case state that not only is credibility an issue but other factors – unique to each individual – such as how pain is experienced and the ability and willingness to talk about an injury, come into play. Some people are more “stoic” and less likely to complain, while others are more open. The courts have ruled that stoicism should not be a bar to recovery. In determining the severity of an injury and the credibility of a plaintiff, the courts will weigh the entirety of the evidence
Another major issue when assessing the value of whiplash claims arises at the beginning of cases when clients ask how much their whiplash injury is worth. The simple answer is that without a crystal ball, it’s impossible to tell. As in the above case:
“Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months to a year or so. Yet every physician knows some patients whose complaint continues for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at fair and reasonable compensation.”
In other words, until enough time has passed to get an idea of how long an injury is likely to last, it is impossible to gauge how much it is worth. Most whiplash injuries resolve on their own, but many will continue on for far longer than expected.
This all leads back to the same conclusion: It is not possible to assess the value of a whiplash claim at the beginning of a case. You can make an educated guess based on experience with previous whiplash cases. However, a minority of injured people will be part of the unlucky few that end up with a life long impairment. This is why I never recommend settling a case too early and always recommend seeking proper legal advice.
