Railway Spine, Minor Whiplash and other Medico-Legal Constructs

Shares in the Nahl Group, part of the ‘no win no fee’ legal industry, fell by 25 per cent overnight after the chancellor of the exchequer announced in his autumn statement that the government ‘intends to introduce measures to end the right to cash compensation for minor whiplash injuries’. He also said that the government would be consulting on the details and expected average savings of £40 to £50 per motor insurance policy to accrue.

In 2012, the Ministry of Justice characterised the UK as ‘whiplash capital of the world’. In 2012-13 there were 476,938 claims for whiplash, making up 58.2 per cent of all road traffic accident personal injury claims.

The quick jerk of the head caused by the sudden stop of a vehicle can cause real injury. But in cases of minor whiplash the diagnosis relies on symptoms alone. This is the problem. There are no visible injuries, no broken bones, and no confirmatory objective tests; scans detect no abnormalities. The potential for exaggeration, and for fraud, is real. ‘Cash for crash’ gangs have been successfully prosecuted. In 2013, the House of Commons Transport Committee tried to find out the frequency of fraudulent whiplash claims. Depending on whom they asked, they got estimates ranging from 0.1 per cent to 60 per cent.

The issue has been presented as novel, part of a growing compensation culture. But it isn’t new at all. John Eric Erichsen’s book On the Concussion of the Spine, Nervous Shock, and other Obscure Injuries of the Nervous System in their Clinical and Medico-legal Aspects was published in London and New York in 1875. Chapter headings illustrate its major theme:

Railway Accidents – Their Peculiarity – Importance of Slight Injuries of Spine – Nervous Shock dependent on Vibratory Jar – Hence Frequency in Railway Accidents – Often Symptoms do not Show themselves for many Days or Weeks – Often a great Disproportion between the Apparent Injury and the Real Damage – The Immediate Lesion probably of a Molecular Character – Those suffer most who sit with their back towards the Collision.

As medico-legal constructs, ‘railway spine’ and ‘minor whiplash’ are identical.

Erichsen was a senior surgeon at University College Hospital and professor of clinical surgery at University College. His book became a bible for lawyers, and an expensive curse for railway companies. But mitigation came from technological advances. By the beginning of the 20th century the biggest targets of litigation by passengers who had suffered minor injury were electric tramways.

Railway spine and minor whiplash are examples of a general phenomenon: the introduction of a new technology and the subsequent appearance of a new illness associated with it, but diagnosable by symptoms alone. The introduction of steel nibs in the Civil Service coincided with the first outbreak of writers’ cramp in the 1830s. A UK Departmental Committee on Telegraphists’ Cramp investigated that problem in 1911. Repetitive strain injury took off in the 1980s in association with an exponential increase in the number of workplace computers and keyboards. In 1976, Donald Hunter’s textbook The Diseases of Occupations had included typists without comment in a list of occupations prone to develop cramps along with 55 others, including compositors, pianists, cigarette rollers, goldbeaters, diamond cutters, tradesmen’s tricyclists, newspaper folders, clarinet players and cotton twisters.

If the chancellor drives the dodgy whiplash claimant out of business, pavement slips and trips may well increase. Perhaps the motor insurance savings will materialise. But it is reasonable to speculate that the big winner will be the Treasury. The cost to the public purse of hearing minor cases will fall, not only because there will be fewer of them, but because those that remain will go to the small claims courts, where the judicial process costs less.