“Accidents happen”, as the saying goes. Imagine it happening to you: writhing in pain at home, only for an insurer to refuse to accept liability on the basis of a Delta-V assessment? All too often, victims are unaware of exactly what a Delta-V assessment entails and how they can challenge the results of such an assessment. In this article, we set out in detail what we have learnt from years of experience and extensive research in the personal injury sector.
What is a delta-v study?
Delta-v refers to the difference in speed of the vehicle involved in the collision immediately before and after the accident. The insurer is the party that commissions a delta-v investigation. Such an investigation attempts to deduce the collision speed and the force of the impact from the damage to the vehicle. It is important to note that a delta-v investigation is not a medical examination. The result of a delta-v investigation therefore says nothing about the victim’s current medical condition.
I’m in pain, so why do I need a delta-v scan?
You might wonder why, despite all the statements from various healthcare providers, the insurer still decides to carry out a delta-v assessment. This is because, in certain cases, the insurer does not dispute that the victim is experiencing symptoms, but is sceptical about the cause of those symptoms. The insurer uses such a delta-v assessment to determine whether it is possible for the victim to have developed such symptoms as a result of the collision. This is particularly relevant for symptoms that are difficult to prove, such as whiplash-like symptoms. These symptoms cannot be proven in black and white, making their presence or absence difficult to demonstrate. The insurer attempts to use a delta-v analysis to demonstrate that such symptoms are not possible with a low delta-v.
The results of a delta-v assessment are expressed as a lower and upper limit in kilometres per hour. It is assumed that a collision with a delta-v of less than 10 km/h could not have caused whiplash symptoms. This is because the change in speed would be too small to cause acceleration/deceleration trauma (the whiplash movement of the neck). As a result, the insurer may be unwilling to pay out the compensation to which you are entitled. We will see to what extent the court will agree with this under the following heading.
Legal validity of a delta-v investigation:
First and foremost, it is important to consider how the burden of proof is allocated in cases of whiplash-like symptoms. In a recent ruling, the Arnhem/Leeuwarden Court of Appeal determined that, with regard to the burden of proof, “it is up to the injured party to allege and, if necessary, prove that they are suffering from health complaints. ‘Where it can be established that the pattern of symptoms is plausible – which will generally be the case where there is a consistent, coherent and coherent pattern of symptoms – the existence of symptoms may be assumed, even where the symptoms are not or are difficult to objectify’ . As a result of this ruling, the pattern of symptoms must be plausible in order to establish a causal link. This is the element that the insurer attempts to refute by means of a delta-v investigation.
In an interim ruling, the Arnhem-Leeuwarden Court of Appeal has ruled that a delta-v assessment is indeed a relevant factor in assessing the causal link. However, this does not mean that a low delta-v automatically implies that there is no causal link. The court considers that all the circumstances of the case must be taken into account, including the plausibility of the physical symptoms. The court emphasises the overall picture here. Various studies show, amongst other things, that children and women, for example, have a higher risk of whiplash-like symptoms at a low delta-v. According to the court, factors such as these must be taken into account in the assessment.
There are various court rulings that address this issue. In practice, we see that judges consider all the circumstances of the case. However, it is true that when the insurer identifies a low delta-v and uses this to challenge the plausibility of the claim, the judge is inclined to agree with this view in the absence of evidence to the contrary. In cases involving a low delta-v, there have been several instances where the victim has been ruled against because they failed to substantiate their position adequately. In practice, we often see that, in order to refute a delta-v defence, the judge usually requires an expert investigation.
As is clear from the above, it is therefore necessary to consider the bigger picture. In this regard, maintaining a well-organised case file is of the utmost importance. Furthermore, it should be noted that this article has only scratched the surface and that, in practice, there may be many more factors to consider. If you have been involved in a road traffic accident and suspect you may face a delta-v investigation, or if you are already facing one, please contact us to ensure you receive the compensation you are entitled to. Completely free of charge.
