A legal take on whiplash injury claims

Cedric E. Stephens' article, 'Whiplash injury claims can be very tricky' published in The Sunday Gleaner on April 17, would leave the uninitiated reader with several wrong impressions.

R.T. of Kingston wrote to say that in December 2009, he or she received a whiplash injury when an SUV ran into the bus on which he or she was a passenger, but that the police said they could not take a statement from R.T.

The simple fact is that R.T. does not necessarily need a police report at all in order to obtain compensation.

In legal claims, there are often unexpected twists and turns and exceptions.

Generally speaking, however, the following applies.

The only information needed by R.T. - or anyone injured in an accident - is the name of the negligent driver and some idea of where that driver can be found for the purposes of serving court documents on him or her.

Compensation

If the negligent driver has sufficient means or assets from which to pay compensation, the injured person need look no further.

Generally speaking, however, it is somewhat easier to secure compensation if the vehicle driven by the negligent driver was insured under a valid policy issued under the Motor Vehicles Insurance (Third Party Risks) Act.

Furthermore, the whole task of preparing and pursuing a claim can be approached with more confidence if insurance is known to have been in place.

If the injured person knows the registration number - licence plate - of the vehicle driven by the negligent driver, it is usually a simple task to find out the name and address of the owner of the vehicle, and the name of the third-party insurance company covering the vehicle.

That is done by having a search conducted at the Tax Office. Sometimes the year, colour, make and/or model of the vehicle can help Tax Office personnel confirm that their records do, indeed, relate to the same vehicle the driver of which is known to have caused the accident.

Traffic accident diary

The registration number - and often, the other details mentioned - can usually be ascertained by having a police officer consult the traffic accident diary kept at the police station covering the area in which the accident took place.

Often, that can be done over the phone.

A simple telephone call to the insurance company - which is legally obliged to furnish the information - can elicit confirmation that the information received from the Tax Office is correct.

Whether other passengers were on the bus or not is irrelevant. Even if R.T. were the only person aboard or even if no other passenger were to have been injured, R.T. would still be entitled to compensation.

The only document (apart from court documents) that the injured party needs in order to secure compensation is a medical report, which complies with the rules of the Supreme Court, if that is where the claim is to be pursued.

A whiplash injury would command an award of compensatory damages well in excess of J$250,000, is the most a resident magistrate is empowered to award.

A medical "certificate" would simply not suffice.

It is quite unnecessary for R.T. to have made the owners of the bus or SUV aware of the fact that he/she was injured.

The insurer of the bus would not be a source of compensation in any event, unless the bus driver was negligent.

R.T. makes no such suggestion.

The driver and/or owner of the SUV would be made aware of the claim by having court documents served.

The only statement that R.T. may need to give is his/her own "witness statement" for filing in the Supreme Court and/or oral sworn or affirmed testimony.

It is quite unnecessary for R.T. to give a statement to the police or to make a sworn statement under the provisions of the Oaths Act or a declaration under the Voluntary Declarations Act.

In fact, early statements made without legal advice or guidance can be decidedly unhelpful.

They may provide material upon which the injured claimant can be cross-examined. Generally speaking, it is most undesirable for claimants to make any such statements.

In the result, R.T. may very well find that his/her claim for compensation for the whiplash injury, far from being "tricky", is really quite straightforward.

What must at all times be borne in mind is that it doesn't necessarily matter what the police think or do - or as in this case don't do - or what the defendant or insurance company thinks or does in relation to a claim for compensation for personal injuries.

What really matters is what the judge thinks and ultimately decides. Judges in our jurisdiction usually have vast experience and considerable expertise in deciding cases for compensation for personal injuries. They are guided in their tasks by the written judgements of, very often, eminent judges who have decided cases over the centuries.

And they are often assisted in their duties by the, usually, dedicated and experienced attorneys and barristers who present the cases to them in court.

Richard R. Reitzin is an attorney-at-law and barrister with the law firm Reitzin & Hernandez. rreitzin@gmail.com