Whiplash : Preskription och adekvat kausalitet vid trafikolyckor

Sammanfattning: Whiplash is a bodily injury, where the person that is injured is subjected to force towards the neck, mainly in traffic accidents. Even low speed accidents can cause severe damage due to the complicated muscle and nerve structure of the neck. Symptoms range from neck aches and headaches to numb fingers and this makes the Whiplash injury difficult to diagnose. Whiplash is also a treacherous injury due to the fact that the symptoms can not be objectively verified. The principal symptom of the injury is pain, which is to its nature highly subjective. One problem that is fairly unique for Whiplash is that it can take several years for the injury to expose itself. The starting point for the essay is to examine what kind of problems that might, given the unique character of Whiplash, present themselves to the victim of Whiplash. The problem of verifying the symptoms objectively, and the fact that more than 90% of the people subjected to this kind of injury manage to recover, means that the remaining 10% are viewed sceptically by the insurance companies. These persons often claim that the injury of Whiplash is due to a different, competing incident. The right to compensation, in case of an accident, is a fundamental pillar of the Swedish welfare society. Few people would object to this, but the general perception is also that compensation should not be paid to anyone that has not been subjected to an injury. However, this pose a problem to the Whiplash victim, where a significant amount of time often passes before the pain caused by the injury reveals itself. The requirements placed by the courts on the burden of proof, and whom is responsible for obtaining this evidence, are questions that naturally arises in Whiplash related dis-putes. The verdict of the courts is often based on the medical evaluation provided by the arguing parties. Unfortunately the opinions of the various doctors involved are often contradictory. A consequence caused by the fact that a long time may pass before the Whiplash related pains reveal themselves is that the statute of limitation may have expired before the injured person has a possibility to pursue a claim of compensation in court. The 31 § (ex 28 §) of the Swedish traffic regulation is not very clear on this issue and only states that the statute of limitations relating to traffic accidents are three and ten years respectively. The start of the limitation period occurs when the person wishing to file a claim has sufficient knowledge to do so. What is meant by sufficient knowledge is not further specified in paragraph 31 TSL; this has been left in the hands of the court to decide. Until recently the verdicts of the court have often been in favour of the in-surance companies. This in the sense that the statute of limitation was considered to start at the time of the accident; a point in time that could easily be objectively verified. This had the unfortunate consequence of often leaving Whiplash victims in a position where they would be facing a fait accompli, i.e. of having their claims rejected due to the statute of limitation. One could say that a conflict existed between the injured person’s need for compensation and the insurance companies’ need of settling insurance claims in a quick an orderly fashion. However, in recent years the Swedish Supreme Court has made several rulings to specify what is meant by “sufficient knowledge”. Unfortunately these problems show no signs of becoming less relevant, with the amount of accidents resulting in Whiplash injuries estimated to amount to more than half of the 60 000 cases of personal injuries reported to the Swedish insurance compa-nies in 2003.