Causal connection in the Nakkesleng II judgment

The Nakkesleng II ruling (Rt-2010-1547) has had a major impact on the handling of personal injury cases both by insurance companies and in the courts. The ruling did not significantly change the current assessment of causality, but it has subsequently been actively used to support various – and in some cases incorrect – views. It is therefore necessary to take a closer look at what the Supreme Court actually stated in the ruling.

1. INTRODUCTION

In May 2002, the injured party (Ask) was involved in a traffic accident after he had stopped behind two other cars. The car behind Ask also stopped before a fifth car crashed into the car behind Ask, pushing it into Ask's car, which sustained damage to both the rear and front.

Ask was taken to the emergency room. The emergency room records show that he had neck pain. Later that day, he was examined at the hospital. The hospital records show that he had no discomfort anywhere and that his neck was completely pain-free.

Ask was not signed off sick after the accident, but continued working until December 2003, when he was signed off sick and did not return to work. At the time the case was heard by the Supreme Court, Ask had applied for a disability pension based on a 100% disability rating.

Since the case had not been resolved, Ask claimed compensation for loss of income for the period 2005–2008, as well as expenses for physiotherapy treatment.

Ask claimed that he suffered a neck injury in the accident, which later developed into generalized pain with symptoms throughout his body. The Supreme Court found that there was a causal link between the accident and the neck injury, but not between the accident and the generalized pain. The Supreme Court acquitted the Traffic Insurance Association because the generalized pain condition was considered to be the cause of the financial loss.

To understand the judgment, it can be divided into three main issues. First, the judgment discusses whether a legal assessment of causation should be based on factors that suggest that permanent pain following a whiplash injury is the result of physical strain on the neck, or whether the permanent pain is primarily the result of psychological and social factors. The Supreme Court concurs with previous case law based on the view that permanent pain following a whiplash injury must be understood on the basis of a traumatic and physical explanatory model. Since the Supreme Court has raised the issue, the question of a physical or psychological explanatory model has received renewed attention and is therefore addressed here.

The next part of the judgment is a specific assessment of the causal link between the accident and the general pain condition. Although this was decisive for the Supreme Court, this part of the judgment is not of any general interest.

A third key issue is the Supreme Court's assessment of the causal link between the accident and the neck injury. This part of the judgment is of considerable interest because the Supreme Court's deliberations will have an impact on the specific content of the conditions for causality.

1.2 GENERAL ISSUES IN THE ASK JUDGMENT

The Supreme Court discusses the first main issue in sections 34 to 44, where it presents recent medical research that may be relevant to the assessment of causation. The Supreme Court then, in sections 45 to 73, conducts a specific assessment of causation related to both the neck injury and the general pain condition.

The Supreme Court's deliberations can be divided into four themes that will be relevant to similar cases:

a) Does recent research show that whiplash injury is essentially the result of psychological and social problems, or should it be maintained that lasting symptoms of whiplash injury are a physical soft tissue injury?

b) Has the Ask judgment changed the content of the four conditions for actual causality established in the Lie judgment, Rt. 1998 p. 1565?

c) Does the judgment change the rules on burden of proof and evaluation of evidence?

d) Has the Ask ruling changed the adequacy assessment? Does the fact that a minor medical disability results in significant incapacity for work have any bearing on the adequacy discussion?

In points 2 to 5, I will comment on these questions.

1.3 CONDITIONS FOR COMPENSATION

There are three basic conditions for compensation. First, there must be a basis for liability. Second, there must be a documentable financial loss. And third, there must be a causal link between the action giving rise to liability and the damage suffered.

In the area of personal injury, the consequences of the injury will be both medical (physical or psychological injury) and incapacity to work. There must be a causal link throughout the chain from the injury event to the medical condition and on to the incapacity and financial loss.

For injuries sustained in traffic accidents, there are rarely any issues related to the basis for liability. In this area, there is strict liability for the tortfeasor, as stipulated in Section 4 of the Motor Vehicle Liability Act. The assessment of financial loss was not addressed in the Ask judgment, nor is it addressed here.

The key issues in the Ask case were related to the question of causation. Causation is therefore the subject of this work.

1.4 BRIEF SUMMARY OF THE LIE JUDGMENT, Rt. 1998 p. 1565

Since it was handed down, the Lie ruling has been decisive for assessments of causality in whiplash injuries. The most important aspect of the ruling was that the Supreme Court established specific conditions for causality in whiplash injuries – the four conditions.

The terms were presented to the Supreme Court by Dr. Helge Nordal, who was appointed as a medical expert. The terms are included on page 1577 of the judgment and can be summarized as follows:

a) The injured party must have been exposed to trauma that triggered forces sufficient to cause injury.

b) Symptoms commonly seen in people who have suffered trauma to the neck must have occurred within 72 hours.

c) The symptoms must have persisted, without excessive symptom-free intervals, from the trauma to the persistent phase.

d) The ailments must not be due to pre-existing disability or other causes, and must be consistent with the expected symptoms.

The conditions are cumulative; they must all be met in order to conclude that there is a causal link. The four conditions are essentially medical criteria for diagnosing whiplash injury (WAD grade I and II) and are based on the assumption that whiplash injury is a physical soft tissue injury.

It is essential to clarify whether, and if so how, the Ask ruling has led to a change in the four conditions as set out in the Lie ruling.

2. IS A WHIPLASH INJURY A PHYSICAL SOFT TISSUE INJURY, OR ARE THE PERMANENT SYMPTOMS OF A WHIPLASH INJURY MAINLY THE RESULT OF PSYCHOLOGICAL AND SOCIAL PROBLEMS?

2.1 INTRODUCTION

For many years, legal assessments of causality have been based on the assumption that whiplash injuries where there are no objective findings (WAD I and II) are the result of physical soft tissue damage inflicted on the injured party by traumatic stress on the neck.

In the 1980s and 1990s, there was a debate about whether symptoms following whiplash trauma, WAD I and II, were the result of physical injury or a consequence of other factors, particularly psychological and social factors. The four conditions that have been applied since the Lie ruling in 1998 are based on the premise that whiplash injury is a traumatic physical soft tissue injury.

Expert witness for the Supreme Court, Dr. Lars Jacob Stovner from the Department of Neurology at St. Olav's Hospital in Trondheim, referred to some general research in his expert statement and explanation to the Supreme Court. This research is described by the Supreme Court in sections 34 to 44.

The research referred to by Dr. Stovner is based on the understanding that persistent symptoms after whiplash injury are not caused by physical and traumatic soft tissue damage, but must mainly be understood on the basis of a biopsychosocial explanatory model. The model is described in section 42, last sentence:

“According to this model, the patient’s symptoms are understood partly as part of the frequently occurring chronic symptoms in the population, the cause of which is unknown, and partly as caused by the psychosocial environment.”

What Dr. Stovner actually did, by presenting this model to the Supreme Court, was to reopen the earlier debate about whether whiplash injuries are psychological or physical in nature.

2.1.1 GENERALLY ACCEPTED MEDICAL KNOWLEDGE

A starting point when assessing medical explanatory models is that legal assessments of causation in the field of personal injury must always be based on "generally accepted medical knowledge." The Lie judgment states on page 1571:

“We are in an area where it is perhaps particularly important that the courts bear in mind that causality, extent of injury, etc. must, as far as possible, be assessed in the light of more generally accepted medical knowledge.”

The Ask ruling reiterates this principle. In a legal assessment of causality, this means that medical research, medical statements, and expert opinions must be consistent with generally accepted medical knowledge in order to be given weight.

There will probably be some blurred lines as to what will satisfy the criterion of generally accepted medical knowledge. Furthermore, medical research is a dynamic process, so what is generally accepted will follow developments in new knowledge in various fields. A starting point for what is generally accepted can be found in the Norwegian Medical Association's Ethical Rules for Doctors of 1961/2002, § 9, first and fourth sentences:

“When examining and treating patients, doctors shall only use methods that are considered acceptable medical practice.

The physician must not use or recommend methods that lack a basis in scientific research or sufficient medical experience.

It must be clear that medical opinions based on work that is at the research and testing stage will not satisfy the criterion. Similarly, research that is inconclusive for statistical or other reasons cannot be generally accepted. Personal opinions and theories will not be given weight if they cannot be substantiated by generally accepted knowledge. Personal opinions and theories will be of particularly little interest if they contradict generally accepted knowledge.

As an example of generally accepted medical knowledge, the Lie judgment refers on page 1571 to the Quebec Task Force report:

“I would particularly like to highlight the report from the Quebec Task Force, an interdisciplinary international group that has compiled material on the causes, prevention, and treatment of conditions triggered by whiplash.”

For the biopsychosocial explanatory model to be relevant in the assessment of causality, it is therefore necessary for the model to be generally accepted as medical knowledge.

The issue related to the biopsychosocial explanatory model became relevant after Dr. Stovner was appointed as an expert witness. The Supreme Court addresses the issue in section 34:

“The lack of objectively verifiable biological findings, combined with the fact that the symptoms can be diffuse and of a type that many people in the population have, makes it difficult to assess the cause. This is also an area where medical knowledge is still developing.”

In order to clarify whether the model meets the requirement of generally accepted knowledge, or is merely a theory put forward by Dr. Stovner as his personal opinion, it is necessary to take a closer look at the medical research that Dr. Stovner presented to the Supreme Court.

2.2 NECK PAIN IS COMMON IN THE POPULATION

As a starting point for the review of medical research, the Supreme Court states in section 35 that:

“…headaches and neck pain are very common among the general population and often occur without any specific cause.”

The symptoms of whiplash injury are not specific. Similar symptoms can also occur without having been exposed to trauma. This is precisely what makes it difficult to assess the cause for this group of injured persons.

The Ullensaker studies from 1990 and 1994 already documented that a relatively large proportion of the population will at any given time suffer from musculoskeletal disorders, including neck and head pain, without necessarily having been exposed to trauma. The fact that the Supreme Court has now clearly established this will simplify the presentation of evidence in this regard in the future, but it does not represent anything new.

2.3 TWO STUDIES FROM LITHUANIA

In paragraphs 36 and 37, the Supreme Court referred to two studies from Lithuania (Schrader et al.).

“The conclusion of the investigation was that the collisions did not lead to any lasting increase in discomfort.”

The Supreme Court pointed out that the material in the investigation was not extensive, but nevertheless stated the following:

"... the study nevertheless indicates that factors other than purely physical injuries may be significant in the development of symptoms."

If the conclusions of the Lithuanian studies are correct, they suggest that permanent neck injuries should be explained by factors other than physical trauma. The Lithuanian studies have been controversial since they were published. The Lithuanian studies were assessed in connection with the study "Whiplash Injury Diagnosis and Evaluation" (SMM Report No. 5/2000) prepared by Sintef Unimed, Norwegian Patient Registry, on behalf of the Ministry of Social Affairs and Health. On page 44 of the SMM report, the following is stated:

The two studies from Lithuania on the incidence of chronic neck pain after whiplash stand out in terms of good study design with regard to the selection of material and the use of control groups (86, 64). We have therefore thoroughly assessed the statistical aspects of these studies.

In the first study from Lithuania of people hit from behind (84), no analyses of statistical power were performed. We therefore do not know whether the group sizes were sufficient to detect a statistically significant difference with reasonable certainty. In the second study from Lithuania (64), it is claimed that the statistical power is 80 percent.

If we similarly assume that approximately 14 percent of the Norwegian population suffers from chronic neck pain regardless of cause, ... and that there is a two percent higher incidence of chronic neck pain among those who have been rear-ended, this suggests ...that there would have to be over 4,000 people in each group to have an 80 percent probability of detecting a statistically significant difference in the incidence of chronic neck pain among those who have been rear-ended and those who have not.

Following this discussion, the SMM report concludes on page 45:

“Schrader and colleagues’ findings from Lithuania are thus based on too small a patient sample to be conclusive in relation to the hypothesis of whether rear-end collisions lead to an increased incidence of chronic neck pain. In such situations with too small samples, we may also find that what we expect to be a positive group difference is estimated to be negative, ... The studies are therefore not conclusive."

The SMM report's assessment of the Lithuanian studies is quite clear. The studies are inconclusive because they are based on too small a patient sample. Since the Lithuanian studies are inconclusive, they do not satisfy the criterion of generally accepted knowledge.

It is problematic that an expert witness for the Supreme Court presents the Lithuanian studies as generally accepted knowledge. An even bigger problem is that the Supreme Court bases its ruling on these studies. This weakens the part of the ruling that concerns “the medical research that has been presented in the case” (section 34).

2.4 COMPENSATION CASES CAN EXACERBATE PAIN – INTEREST NEUROSIS

In section 38, the Supreme Court referred to a study from England, published in 2005, which found that:

“… that the incidence of long-term complaints was significantly higher among people who had claimed compensation after the accident. … The study concludes with a hypothesis that the pursuit of compensation in itself may contribute to intensifying and chronicling the pain.”

It is suggested here that lasting ailments are the result of an ongoing compensation case, possibly a form of interest neurosis (expectation of substantial compensation).

The English study referred to by Dr. Stovner is based, among other things, on the Lithuanian studies. Section 38 states:

Studies from countries with low expectations of compensation, including Lithuania, Greece, and Germany, have shown no long-term increase in neck pain in people exposed to rear-end collisions.

The fact that the English study is based on the Lithuanian studies is in itself a weakness. The general significance of interest rate neurosis as a factor influencing pain is discussed by Professor Helge Nordal, MD (expert witness in the Lie case) in the article "Medical aspects of neck injuries" from 2007. The problem is outlined on page 6 of the article:

“Is it possible to identify factors associated with a high risk of developing chronic conditions? Little is known about this, but there is plenty of speculation.”

On page 7 of the article, it is stated:

“It does not appear that simulation or interest rate neurosis are of any significant importance.”

When the English study referred to in the Ask judgment assesses the possible reasons why people involved in compensation cases experience increased and prolonged pain, the following is stated in section 38:

“… there is something about the stress and anxiety of the calm itself that tends to prolong symptoms in people seeking compensation.”

It is not difficult to agree that the stress of an ongoing dispute with an insurance company, combined with uncertainty about one's own and one's family's finances, can have an impact on the maintenance and development of pain. In such a context, the dispute itself and the concerns surrounding it will be psychological/social factors that can contribute to exacerbating the pain.

These types of maintenance and reinforcement factors are discussed in

research project "Whiplash-associated neck injuries" from 2005. The report was commissioned by the Ministry of Health and Social Affairs. The group was broadly and heavily composed of experts, and the work will undoubtedly fall under "generally accepted knowledge." The conclusion on page 32 of the report states:

"If the pain persists over time, the pain threshold may decrease and the patient's discomfort may be exacerbated through so-called sensitization mechanisms, as is also the case with many other chronic pain conditions. The patient can then easily enter a vicious circle, where both physical and psychological factors contribute to a worsening of the discomfort."

It is well known and predictable that psychological and social factors, such as an ongoing compensation case involving significant financial risk, can affect pain levels and have an adverse impact on the development of the illness. Any negative consequences of the stress associated with a compensation case will be nothing more than a predictable secondary consequence of the original and triggering injury.

2.5 THE CASTRO STUDY – PLACEBO DRIVING

In sections 39 and 40, the Supreme Court refers to the Castro study:

Stovner also referred to the so-called Castro study from Germany, in which 51 test subjects were subjected to a 'simulated collision' without warning ... Despite the fact that the collision did not cause any physical damage, 18 percent of the test subjects reported pain in the head and/or neck immediately after the collision, 20 percent reported pain three days later, and 10 percent reported pain four weeks later."

Dr. Stovner also cites this study to support his point that lasting symptoms after whiplash injury cannot be biologically linked to the triggering trauma alone.

The Castro study is discussed in Dr. Helge Nordal's article "Medical aspects of neck injuries" from 2007. On page 7, it states:

There has been speculation that simply believing that one has suffered whiplash injury can trigger acute symptoms similar to those found in whiplash. This has been suggested on the basis of simulated collisions with volunteer test subjects, Castro and co-authors, ...

In this context, it is important to note that a psychological reaction to an accident goes hand in hand with the somatic reaction, and that the two mechanisms are not mutually exclusive.”

The Castro study was published in 1997 and therefore did not represent recent research in relation to the Lie ruling from 1998. However, the key point is that the study does not establish anything other than that psychological factors play a role in the development of pain, which is already well known.

The fact that some individuals may suffer from psychologically induced symptoms after a simulated collision is not problematic in the legal handling of whiplash cases. As a result of the fact that the assessment of causation requires that the injured party has been exposed to adequate trauma, no one who has been exposed to a simulated collision will be entitled to compensation.

2.6 THE BIO-PSYCHO-SOCIAL EXPLANATORY MODEL

The Supreme Court's review of "the medical research that has been highlighted in the case" by Dr. Stovner led to the question of whether the permanent symptoms following a neck injury can be explained by physical conditions – or whether the permanent symptoms must primarily be understood based on a biopsychosocial explanatory model.

The biopsychosocial model described by Dr. Stovner is presented in section 42:

“According to this, moderate trauma involving whiplash will cause acute pain in many people, either due to undetectable minor soft tissue damage or purely psychological reasons (stress, anxiety, anger), which are common causes of acute head and neck pain. If this occurs in a society where the general public, healthcare system, media, and judiciary are of the opinion that this is a serious injury that can lead to chronic disability, the pain may be exacerbated by further anxiety about chronic pain and negative expectations on the part of the patient.

According to this model, the patient's symptoms are understood as part of the frequently occurring chronic symptoms in the population, the cause of which is unknown, and partly as caused by the psychosocial environment.

If this model is correct, permanent whiplash injuries will not occur, and neck injury victims will recover when the population is informed that the injury is not due to physical damage, but is solely the result of misconceptions established in "health care, the media, and the judicial system."

This is, of course, a fascinating idea, not primarily because it would save society money, but because it would be a fantastic advance for medical science and for everyone who struggles with long-term pain after whiplash.

The decisive factor for the model's relevance is therefore the question of whether the biopsychosocial explanatory model is generally accepted medical knowledge, or whether the model should only be regarded as a theory. This question is answered by Dr. Stovner in section 42:

“It has been suggested that whiplash in Western countries can be explained using a biopsychosocial explanatory model.”

I have emphasized the word "proposed" to distinguish it from "established." Medical explanatory models that are only proposed will never be able to satisfy the requirements of generally accepted knowledge.

2.7 CONCLUSION – MEDICAL EXPLANATORY MODELS

Although some people, both in medical and legal circles, would argue that the biopsychosocial explanatory model is the main explanation for chronic neck pain, there is no generally accepted scientific support for this view.

On the contrary, research shows that the symptoms are physically induced. In the Lie ruling, the Supreme Court referred to the Quebec Task Force report of 1995 as an example of generally accepted medical knowledge. This report is based on the assumption that the damage is physically induced. The Norwegian SMM report is based on a similar premise. On page 7 of the SMM report, under the summary, it states:

“Whiplash is defined as an ‘acceleration-deceleration mechanism that transfers energy to the neck’. It can be caused by motor vehicle collisions from behind or from the side, … The investigation team has used the definition of neck injuries … developed by the Quebec Task Force in 1995.”

After reviewing medical research, the Supreme Court concluded in the Ask judgment, as in the Lie judgment, that the assessment of causation must be based on an understanding that permanent whiplash injury is caused by physical soft tissue damage. This is stated in section 44, third sentence:

“Despite the uncertainty surrounding the medical causal link, I find it appropriate to base my decision on the four basic conditions previously established in case law and medical literature for awarding compensation in whiplash cases, cf. Rt. 1998 page 1565, on page 1577."

With this, the Supreme Court rejected the biopsychosocial explanatory model for understanding permanent pain after whiplash. The Supreme Court concluded that the assessment of causation should be made in accordance with the four conditions set out in the Lie judgment.

3. HAS THE ASK RULING CHANGED THE CONTENT OF THE FOUR CONDITIONS?

3.1 INTRODUCTION

After the Supreme Court established in section 44 that these four conditions should be applied in a specific assessment of causality, the Supreme Court discussed these conditions in sections 45 to 48. A natural and central question is whether the Ask judgment entails any change in the content of the conditions.

3.2 THE DAMAGE CRITERION

The Supreme Court states the following in section 45:

“Firstly, there is a requirement that the accident must have caused sufficient damage. There is no doubt that this condition is met in this case. Ask's car sustained significant damage to both the front and rear in the chain collision and had to be written off.”

It is established that the condition of damage is fulfilled because Ask's car sustained "significant damage." Since this criterion is not part of the Supreme Court's specific assessment of causation, no further comment is made in paragraph 45. However, the Supreme Court addressed this criterion in its review of general views in paragraphs 34 to 44.

The damage criterion is not normally problematic in collisions that trigger large collision forces and where the injured party has suffered significant trauma. However, it is not as obvious that the condition is met when there is minor damage to the cars – in so-called low-energy trauma cases.

In order to assess whether the criterion is met, technical calculations are used in some cases to estimate the speed changes or G-forces to which the injured party's car has been exposed. However, a decisive weakness of such measurements is that it is not known what forces the injured party's motor vehicle must have been exposed to in order for personal injury to occur.

The view that one should be very cautious about rejecting causality based on this criterion has become increasingly prominent. One reason for this is that it is not possible to assess the forces to which structures in the neck are exposed based on an analysis of the damage to a car.

In section 41, the Supreme Court expressed a similar general view:

Stovner points out that medical research has not been able to find any connection between the force of the collision and the development of whiplash injuries...

It goes without saying that assessments and calculations based on damage to the cars are of little help in a concrete assessment when it is not known how there is a "connection between the force of the collision and the development of whiplash injuries."

The Supreme Court followed a similar general consideration from the Lie judgment on page 1577, where Dr. Nordal was quoted:

“In my experience, one should be very cautious about setting categorical limits for the minimum speed changes that cause health problems.”

In "Medical aspects of neck injuries" from 2007, on page 9, Dr. Nordal expresses a similar approach to the injury criterion:

“A paradox of real-life observations is that there is no correlation between the degree of speed change and the risk of whiplash injuries. In other words, the risk of developing chronic whiplash syndrome appears to be the same regardless of whether the speed change is low or high.”

Dr. Nordal expresses the same view here as Dr. Stovner put forward in the Ask case.

The consequence of this is that the Supreme Court once again states that one must be very cautious about rejecting causality even if the injured party's car only experienced a minor change in speed at the time of the accident.

3.3 REQUIREMENT FOR ACUTE SYMPTOMS

The Supreme Court considers this condition in section 46. First, it makes a statement that may be of general significance, followed by a specific assessment. In general, the Supreme Court states:

“Secondly, there must be acute symptoms in the form of neck pain within 2-3 days after the accident.”

One question that arises is whether the Supreme Court is making a change here in relation to how the criterion was established in the Lie judgment. I ask this question because in the Ask judgment, the Supreme Court links the criterion solely to "neck pain," while the Lie judgment provides guidance on a more nuanced approach. The Lie ruling states on page 1577:

“There must be acute symptoms from the neck or head within a maximum of a couple of days. … For most people, the acute symptoms will involve stiffness and pain in the neck, headache, or temporary discomfort in the arms due to irritation of the nerve roots that pass between the cervical vertebrae.”

I have highlighted the word "or" to show that acute symptoms do not necessarily have to be neck pain. Although the vast majority of people have neck pain as their main symptom in the acute phase, this condition can also be met by the presence of other symptoms. The Ask ruling does not refer to any research or other evidence that would indicate a change in this. It will therefore be the more nuanced description of the content of the condition described in the Lie ruling that must still be considered applicable law.

The Traffic Insurance Association strongly argued that the condition of acute symptoms had not been met. The reasoning was that Ask had been completely symptom-free on the evening of the accident after experiencing some discomfort immediately after the accident earlier that day. Section 4 states:

“After the accident, Ask was taken by ambulance to the emergency room. The medical records show that Ask had pain in his neck. He was sent on to the emergency room at Hospital y to have his neck X-rayed. The X-ray showed no signs of injury. The attending physician wrote in the medical records that Ask had no discomfort anywhere, including his neck, and that he did not want to be put on sick leave.”

The Supreme Court's assessment of whether the criterion is met is set out in paragraph 46:

“Ask reported neck pain when visiting the emergency room immediately after the accident. I therefore consider this condition to be fulfilled. However, based on the descriptions given shortly after the accident, there is reason to believe that the pain was relatively moderate.”

Even though the neck pain had disappeared just a few hours after the accident, the Supreme Court ruled that the condition had been met. It is therefore sufficient to meet the condition that a relevant symptom is present at some point during the 72-hour period.

3.4 REQUIREMENT FOR SYMPTOMS

The Supreme Court described this condition as follows in paragraph 47:

“Thirdly, there must be bridge symptoms, i.e. continuous symptoms from the accident to the chronic late phase.”

In the Lie judgment, the condition was described as follows on page 1577:

“There must be ‘bridge symptoms’ from the acute phase to a chronic late phase.”

In the Lie judgment, the Supreme Court also provided a more comprehensive explanation of what was meant by this condition. It further states on page 1577:

“If the patient recovers, only to experience similar symptoms several weeks or months later, it becomes increasingly uncertain whether the previous injury or a natural predisposition to health problems involving pain, stiffness, etc. is the main cause of the symptoms.”

I have emphasized "increases uncertainty" to emphasize that causality is not automatically ruled out if there are symptom-free intervals. If there are symptom-free intervals of "weeks or months," the assessment naturally becomes more uncertain.

The reason why causality cannot be ruled out even during relatively long symptom-free periods is that there is no medical research indicating that a general requirement can be established that the symptoms must have been present without any symptom-free intervals. This is clearly stated in the SMM report on page 46:

“There is also no documented necessity for transitional symptoms between the acute phase and a later chronic course, but it may seem logical based on experience with soft tissue elsewhere in the body.”

The Ask ruling is a good example of how the condition regarding bridge symptoms can be met even if there are symptom-free intervals. As is well known, Ask became symptom-free a couple of hours after the accident. Symptoms were then first described approximately one month later, section 57, second sentence:

“I would like to point out that it took four weeks before Ask had another doctor's appointment after the accident, and two months before he contacted the doctor again.”

The Traffic Insurance Association argued strongly that this ruled out causality. The Supreme Court expressed uncertainty in section 57, first sentence:

“Based on the facts I have now described, I believe there is some doubt as to whether the requirement for bridge symptoms has been met. … However, I see no reason to go into this in greater detail.”

The Supreme Court did not explicitly address the assessment of the bridge symptom criterion in a separate assessment. The Supreme Court dealt with the question of bridge symptoms together with the compatibility criterion, referring to both conditions as the "expected course of the disease." This is evident from paragraph 47:

“I will address the question of whether this condition is met together with the assessment of the fourth condition that has been set, namely that there must be a clinical picture that is compatible ...”

In connection with the assessment of the compatibility criterion, the Supreme Court considers the requirement for bridge symptoms. Both experts concluded that all four conditions, including the requirement for bridge symptoms, were met with regard to the neck pain. This follows from section 59:

“… the experts appointed by the Supreme Court, who have both concluded that Ask has an accident-related medical disability of 5 percent as a result of slightly reduced mobility and mild pain in the neck.”

The Supreme Court's agreement with this is evident from the last sentence in paragraph 58:

“Given the requirements that must be met in terms of causality, it cannot be said that the condition of an expected course of illness is fulfilled for those aspects of his pain condition that do not relate to the moderate neck pain he experienced after the accident.”

Sections 47, 58, and 59 must be viewed in context in order to determine that the Supreme Court concluded that the requirement for bridge symptoms was met. This is a consequence of the Traffic Insurance Association's decision to consider the requirement for bridge symptoms together with the assessment of the compatibility criterion.

The systematic approach taken in the Lie ruling—which I am following here—where the conditions are dealt with separately, is preferable. This will provide a clearer distinction between the conditions and thus a clearer justification for the various conditions.

A final point regarding bridge symptoms is that Dr. Stovner, with the support of the Supreme Court, concluded that the condition was met. This is despite the fact that section 44 states:

“… strict requirements must be imposed on documentation in each individual case.”

When one considers how bridge symptoms are documented in the case, with a symptom-free period in the early stages when the symptoms are expected to be at their strongest, I can only conclude that the Supreme Court has relaxed this condition in favor of the injured party.

3.5 THE FOURTH CONDITION

The fourth condition contains three elements. For the three-part division and development of the concept of "compatibility criteria," see Morten Kjelland, Særlig sårbarhet i personskadeerstatningsretten (Particular Vulnerability in Personal Injury Compensation Law) of 2008, page 363. In the Lie judgment, the three-part division is set out on page 1577:

a) "The clinical picture must be consistent with what is known about injuries caused by whiplash." (consistency criterion)
b) "Nor must the health problems after the accident be merely a continuation of health problems the patient had before the accident." (pre-existing disability)
c) "The clinical picture must not have another, more probable explanation in another condition from which the patient suffers." (other causes)
3.5.1 THE COMPATIBILITY CRITERION
Ask did not meet this criterion in relation to the general pain condition. This was decisive and was the reason why he did not succeed in the Supreme Court. Section 57 states:

“… it is the course of the illness itself that is decisive for my assessment of the case.”

Ask stated that all his ailments, both the neck injury and the generalized pain condition with severe disabling symptoms throughout his body, were caused by the injury.

The general pain condition was considered to be the cause of the disability that led to the financial loss. This pain condition was not considered to be a compatible consequence of a whiplash injury and thus not causally related to the accident. The Traffic Insurance Association was therefore acquitted.

However, the Supreme Court concluded that the neck pain was a compatible consequence of the triggering trauma. It is essential to understanding the judgment to be aware that the Supreme Court found that there was a causal link between the accident and Ask's neck injury. This is evident from the last sentence in paragraph 58 and the first sentence in paragraph 59:

“Given the requirements that must be imposed on causality, can it not be said that the condition of an expected course of illness is fulfilled for those parts of his pain condition that do not relate to the moderate pain in his neck that he experienced after the accident?”

“This is in line with the conclusion of the Supreme Court experts, who have both concluded that Ask has an accident-related medical disability of 5 percent ...”

Against this background, the Supreme Court's assessment of the criterion can be discussed. The content of the foreseeability criterion is set out in paragraph 48:

"The requirement implies ... that 'the symptoms after the accident must have a traumatologically plausible course,' as Professor Stovner puts it."

“… the ‘normal course’ is that you ‘have the most severe symptoms in the first few days after the accident’ and then gradually get better, or that the pain stabilizes at a lower level than in the phase immediately after the accident.”

“According to the experts, a development where pain and discomfort worsen weeks or months after the accident, or occur in other parts of the body, is in principle not compatible with the injuries being caused by soft tissue damage.”

If the symptoms are not consistent with the expected progression of a neck injury, this would suggest that the accident is not the cause of the symptoms.

Paragraph 48 points to two types of development that may result in the symptoms being incompatible. Firstly, a development where pain and discomfort worsen weeks or months after the accident, and secondly, a development where pain and discomfort occur in other parts of the body.

As stated in the SMM report, it is not unusual for pain to worsen through so-called sensitization mechanisms. Reference is made to the report's conclusion on page 32:

A worsening of the symptoms themselves does not necessarily mean that the symptoms are incompatible with whiplash injury. It must be investigated whether the worsening is a result of sensitization mechanisms, which are compatible, or is a result of factors/random worsening that are not related to the original symptoms after the accident.

In the first few years after the accident, Ask experienced a significant deterioration and spread of his symptoms to other parts of his body. Six months after the accident, Ask's symptoms in section 51 were described as follows:

“In a self-declaration form submitted to the insurance company on August 14, 2002, he states that he has pain in his neck, back, arms, and legs, and that on a scale of 1 to 10, the pain is around 5.”

In 2005, the symptoms were described as follows in section 53:

In a new self-declaration to the insurance company dated March 10, 2005, he reports pain in large parts of his body, with pain levels of 8 and 9 on the pain scale. In his application for disability benefits dated December 12, 2005, he states that he has 'pain in his neck and back that radiates to the rest of his body. This makes it difficult for me to sit, lie down, stand, use my arms, lift, etc.'"

Ask thus experienced both an extreme worsening of the pain and the development of new symptoms elsewhere in the body, as described in section 58:

"As I see it, there has been both a worsening of symptoms and a development where the pain originates from other parts of the body than the area around the neck."

A symptom development such as the one in question would not be compatible with – and cannot be explained by – whiplash trauma.

The symptoms that were considered incompatible were related to the general pain condition. With regard to the neck problems, the Supreme Court found that these were compatible. This is evident from the last sentence in paragraph 58:

“..., it cannot be said that the condition of an expected course of illness is fulfilled for those parts of his pain condition that do not relate to the moderate pain in his neck that he experienced after the accident.”

The Supreme Court concluded that the neck problems were compatible even though there had clearly been a deterioration from the examination at the hospital on the evening of the accident—when he was completely free of symptoms in his neck—until the next records of symptoms one to two months later.

The symptoms may therefore be compatible even if they fluctuate over time and even if they are not most severe in the first few days after the accident.

3.5.2 INITIAL INVALIDITY

The second element of the fourth condition relates to the assessment of whether the symptoms that arise in the period following the trauma can be linked to the trauma, or whether the symptoms are a continuation of symptoms that existed prior to the trauma, i.e., a pre-existing disability. This is stated in the Lie judgment on page 1577:

“Nor should it be the case that the health problems following the accident are merely a continuation of health problems the patient had prior to the accident.”

Ask did not have any similar problems prior to the accident. Initial disability was therefore not an issue in the case.

3.5.3 OTHER CAUSES

The third element of the fourth condition relates to the question of whether there are other causes for the neck pain. The Lie judgment states on page 1577:

“The clinical picture must not have another, more probable explanation in another condition from which the patient suffers.”

The Supreme Court did not assess whether there could be other more probable causes for Ask's symptoms, but confirms that it is not necessary to establish that there are other causes in order to conclude that there is no causal link:

“I would also like to mention that even though there is no other explanation for Ask's pain and disability, this is not sufficient to conclude that the accident is the cause.”

This wording is primarily significant for the rules on the burden of proof and is a consequence of the fact that it is the injured party who has the burden of proving that all four conditions are met. BURDEN OF PROOF AND EVALUATION OF EVIDENCE

4. BURDEN OF PROOF FOR OTHER CAUSES

There has been uncertainty as to whether it is the injured party or the injuring party who has the burden of proof regarding whether there may be other causes for the neck pain.

Ask argued that the burden of proof lies with the tortfeasor, and that the injured party's burden of proof is limited to the other elements of the four conditions. Previous Supreme Court practice appears to support such an argument. In Rt. 2001 p. 320 (Nilsen), the following is stated on page 329:

“If the party against whom the claim is directed asserts that, even if the accident had not occurred, damage would have occurred for another reason, the risk of doubt regarding the alternative damage must be transferred to that party.”

This can be understood in the sense that Ask suggested. However, the Supreme Court ruled that the injured party had the burden of proof for all elements of the four conditions. This is stated in section 71:

"... it is only when the four conditions for establishing causality are met, but where the injuring party claims that there is nevertheless another cause for the disability, that the injuring party must substantiate an alternative cause."

The injured party therefore has the full burden of proof that the alleged injury-related symptoms were caused by the trauma.

4.2 BURDEN OF PROOF FOR THE INJURED PARTY

When the injured party has demonstrated that the four conditions are met, it is established that the trauma caused the neck injury.

It is not uncommon to encounter cases where the injured party, in addition to the neck injury, has other injuries, illnesses or strains that may affect their disability. The burden of proof lies with the party responsible for the injury to demonstrate that such other factors may be causally related to the disability.

It is therefore only when the four conditions have been established and it is to be assessed whether there may be other relevant contributing or independent causes that the burden of proof is reversed.

The burden of proof on the tortfeasor must be met in the same way as that on the injured party. If, for example, it is an issue in the case whether the injured party has suffered an injury elsewhere in the body as a result of another trauma, the burden of proof must be met by the tortfeasor demonstrating that the four conditions are met in relation to the other injury in question.

And if a mental disorder that is not causally related to the accident is to be considered a competing cause, the tortfeasor must prove that the disorder is relevant to the disability by demonstrating both that the diagnostic criteria for the disorder are met and that the disorder is causally related to the disability.

4.3 EVALUATION OF EVIDENCE AND WEIGHT OF EVIDENCE

As I understand it, Dr. Stovner, an expert witness for the Supreme Court, is of the personal opinion that permanent whiplash injuries must first and foremost be understood on the basis of a biopsychosocial explanatory model. However, as mentioned, section 42 states that Dr. Stovner concludes that this model is only "proposed" and therefore not established.

Dr. Stovner thus does not conclude in accordance with his own personal opinion, but in accordance with what is generally accepted medical knowledge. However, his personal opinions are evident in his specific assessment of the question of causation.

In section 44, the Supreme Court quoted from Dr. Stovner's written statement:

“…since the link between whiplash and chronic pain is generally highly questionable, strict requirements must be imposed on documentation in each individual case.”

The Supreme Court agreed with this. One question that arises is what exactly is meant by "strict documentation requirements."

It must be clear that the Supreme Court does not raise the requirement for probability to over fifty percent here. If this had been the Supreme Court's opinion, it would have been clearly stated. What the Supreme Court means by quoting Dr. Stovner here must be seen in the context of the last sentences in the section referring to the Lie judgment. The last sentence in section 44 reads:

“The most recent documentation must be given the greatest weight, cf. the same decision on page 1570.”

In the Lie judgment, the bottom paragraph on page 1570 outlined certain general guidelines for weighing evidence. Among other things, it pointed out:

“Of particular importance in the assessment of evidence will be records made close to the time of the event or circumstance to be clarified, and in particular descriptions made by professionals precisely for the purpose of clarifying a situation.”

These guidelines in the Lie judgment did not represent anything new in terms of evidence assessment at the time. It is quite obvious that, as a starting point, more weight should be given to contemporaneous than to subsequent records. Similarly, the reference to the importance of contemporaneous documentation in the Ask judgment did not represent anything new in relation to the Lie judgment.

It can be somewhat difficult to understand what Dr. Stovner meant by saying that "strict requirements must be imposed on documentation in each individual case." As I have shown above, the documentation of both acute and bridge symptoms in Ask's medical records was weak and uncertain. Despite this, Dr. Stovner concluded in his specific assessment that both conditions were met. The other expert, Dr. Stanghelle, assessed the evidence in the same way.

The Supreme Court also found that Ask had suffered a certain degree of injury-related medical disability – i.e. that the requirements for both acute and bridge symptoms had been met. Given the uncertain and conflicting records that existed regarding acute and bridge symptoms, the ruling will not mean any tightening of the requirements for documentation. In reality, the ruling implies the opposite.

5. ADEQUACY AND THE ASK JUDGMENT

5.1 INTRODUCTION

Ask argued, in the alternative, that even if it was a general pain condition triggered by biopsychosocial factors that was the main cause of his disability, he should still be entitled to compensation because his neck problems must at least be regarded as a contributing factor which, together with the general pain condition, was necessary for the disability. Paragraph 67 states:

“Ask has stated that he is entitled to compensation even if the course of the illness is viewed from a more biopsychosocial perspective.”

A contributing causal factor shall be held fully liable if, when assessed against other causes, the factor does not appear to be so insignificant that it is unreasonable to attribute liability to it, cf. Rt. 1992 p. 64 (P-pille II).

However, the Supreme Court considered the contribution of Ask's injury-related neck pain to his disability to be insignificant in relation to his general pain condition. Paragraph 68, second sentence:

“In my view, the accident becomes such an insignificant element in the chain of causation in such an explanatory model that it is neither natural nor reasonable to consider it as grounds for compensation.”

In the same paragraph, fourth sentence, the Supreme Court also addressed the issue of adequacy:

“Whether this is seen as a result of the triggering cause being too insignificant to give rise to liability, or whether it is seen as an unforeseeable consequence of the accident, is irrelevant in this context.”

The Supreme Court thus rejected Ask's alternative argument on the basis of considerations relating to the doctrine of immateriality and the doctrine of adequacy.

The Supreme Court's conclusion that the accident's contribution was too insignificant to be liable was a natural consequence of the Supreme Court's assessment of the question of actual causality. The Supreme Court believed that Ask would have become disabled due to his general pain condition even without the traffic accident. The significance of the neck pain for his disability must therefore be insignificant.

However, it is interesting to discuss whether the Supreme Court's statement on foreseeability implies any change in the adequacy discussion in relation to previous practice.

5.2 ASSESSMENT OF ADEQUACY

Once it has been established that the four conditions for actual causation have been met, the tortfeasor may argue that he should not be held liable because the damage is not adequate. The rationale behind the adequacy condition is that the tortfeasor should be protected against large financial claims that are too peripheral or that arise too far removed from the harmful act.

If the consequences of the damage are not adequate, the tortfeasor shall be acquitted because it is part of the requirement for causality that the consequences of the damage are adequate. The requirement for adequacy therefore means that compensation is denied even if the liable event is a necessary condition for the damage.

The requirement of adequacy is part of the legal assessment of causation, while the four conditions are part of the requirement of actual causation.

Exclusion occurs if the damage is too unexpected and too remote, too derivative, or too indirect in relation to the harmful act. The adequacy assessment will thus define the outer limits of compensation law protection.

The key elements in the adequacy discussion are the foreseeability criterion and the proximity criterion.

The adequacy discussion also includes factors other than foreseeability and proximity. The purpose of the liability rule, the tortfeasor's fault, risk allocation considerations, and pure fairness considerations are factors that can help establish the threshold for adequacy in the specific case. However, practice shows that these factors have little independent significance alongside foreseeability and proximity.

Dr. juris. Morten Kjelland writes about adequacy in Personskadeoppgjør (Personal Injury Settlements), 2011, in Chapter 3 on causality and evidence.

The Ask ruling provides grounds for two discussions concerning adequacy. Firstly, questions may be raised as to how the Ask ruling should be assessed in relation to previous case law. Secondly, it is natural to discuss the Supreme Court's specific reference to the connection between Ask's mild neck pain and his significant incapacity for work.

5.2.1 GUIDELINES FOR ASSESSING ADEQUACY

The Supreme Court has addressed adequacy in several recent personal injury judgments. The judgments clarify the legal situation and show how the criteria of foreseeability and proximity are applied in practice.

The most relevant judgments are Rt. 1997 p. 1 (Rossnes), Rt. 2000 p. 418 (Thelle), Rt. 2000 p. 915 (Dispril), Rt. 2001 p. 320 (Nilsen), Rt. 2007 p. 172 (Jæger), Rt. 2007 p. 158 (Biseth) and now Rt. 2010 p. 1547 (Ask). There are also other Supreme Court judgments where adequacy is an issue. However, the judgments mentioned above are sufficient to clarify the legal situation.

It should be noted that in the first four judgments, the Supreme Court used the terms foreseeability and adequacy somewhat randomly and interchangeably. In the later judgments, it is clear that the criterion of foreseeability is an element in the discussion of adequacy.

5.2.2 THE PREDICTABILITY CRITERION

Traditionally, the foreseeability criterion stipulates that the damage must have been something that the perpetrator could have foreseen, expected, or anticipated as a result of a specific damaging event. For a car insurance company, it will necessarily be natural to take into account when setting premiums that people traveling in traffic may suffer all conceivable physical and psychological injuries.

The concept of foreseeability also includes a statistical or frequency-based assessment of how rarely a specific injury occurs after a specific injury event.

As a result of car insurance companies having to take into account that all possible physical and psychological injuries can occur in traffic, even very rare injuries are in principle covered by compensation law.

The key ruling on the foreseeability criterion in the area of motor vehicle liability is Rt. 2001 p. 320 (Nilsen). Nilsen was injured in a traffic accident and claimed to have suffered a mental disorder that resulted in paralysis and chronic pain. The Supreme Court found that there was an adequate causal link between the accident, which the defendant claimed involved very moderate forces, and a psychologically induced paralysis that rendered Nilsen completely disabled.

The specific incident, a traffic accident on September 24, 1990, is described in the judgment on page 321:

“As a result of the car’s right front wheel coming off the edge of the asphalt at the entrance to a right-hand bend, he lost control of the car. The car first crossed the road and hit the guardrail on the left side of the road in As’s direction of travel. It then crossed the road again and crashed into a rock wall on the right side of the road.”

Nilsen's diagnosis was partly a dissociative motor disorder and partly a somatization disorder that caused pain and paralysis several years after the accident. The condition worsened significantly over a period of several years after the accident. The specific consequences of the injury are described in a medical certificate dated June 13, 1994, included in the judgment on page 323:

"At present, he has almost total left-sided spastic hemiparesis, in that his left arm can be used for support and his legs move stiffly and immobily."

The statistical probability of a driver suffering psychological paralysis is very small. This is stated in the judgment on page 334:

“Professor Malt has stated in his declaration that such disorders as we are dealing with here are not expected, but neither are they unknown after accidents. Based on his own studies of injured persons who have been followed up over three years, he has assessed the probability of such a course of events after an accident such as the one in question to be less than 1/1,770.”

Although the probability was very small, and although the car insurance company therefore had a correspondingly small incentive to be able to foresee this specific consequence of damage, the Supreme Court concluded on page 334 as follows:

“Following the presentation of evidence before the Supreme Court, it must be assumed that it is not unreasonable for a traffic accident to trigger a mental disorder, and even though injuries of the nature we are dealing with here are rare, in my opinion the injury cannot be considered outside the scope of what must be regarded as an adequate consequence of the accident.”

The Dispril judgment in Rt. 2000 p. 915 is another example of how the fact that the consequences of the damage were difficult to foresee and occurred very rarely was not sufficient grounds for inadequacy. The frequency of damage and the tortfeasor's ability to foresee the damage are evident from the tortfeasor's submissions on page 918 of the judgment:

“Dispril is a widely used drug, sold in approximately 60 countries with more than several billion tablets annually. It has been manufactured since 1948. Any side effects should be well documented during that time. Nevertheless, the respondent is not aware of any case in which the company has been held liable or has acknowledged liability for Dispril causing Stevens-Johnson syndrome.”

There is therefore an extremely small statistical chance of developing Stevens-Johnson syndrome when using Dispril. Nevertheless, on page 925 of its judgment, the Supreme Court concluded:

“The fact that such an effect occurs extremely rarely is not decisive.”

As mentioned above, the key factor in assessing foreseeability is whether the consequences of the damage were foreseeable and how frequently they might occur. It is not easy to imagine practical cases where the tortfeasor faces less frequent and more difficult to foresee consequences of damage than was the case in the Nilsen and Dispril judgments.

This means that the consequences of the damage in both the Nilsen and Dispril judgments were unforeseeable. When the Supreme Court nevertheless concluded that the causal link was not inadequate, this means that unforeseeability in itself is not sufficient for inadequacy.

The interesting question then becomes what was the reason why the consequences of the damage were considered adequate in these cases, even though they were unforeseeable. The answer lies in clarifying why the consequences of the damage developed in an unforeseeable direction. In the Nilsen judgment, this is stated on page 334:

“… gradual deterioration until the left side became paralyzed. This has occurred without any apparent influence from subsequent circumstances unrelated to the accident.”

The decisive factor was that there were no subsequent circumstances that intervened and affected the consequences of the damage.

In the other adequacy judgments, the Supreme Court found that the consequences of the damage were inadequate. In all of these judgments, there are specific circumstances that occur in addition to the direct consequences of the liability event and make the consequences of the damage unpredictable.

Unpredictability is thus a condition for, but not sufficient for, inadequacy.

In a specific adequacy assessment, it must therefore first be clarified whether the damage is unforeseeable. If it is not, but only damage that is common in relation to the specific liability event, adequacy cannot be ruled out.

For an injured person who has been exposed to a whiplash mechanism, it is to be expected that neck and/or head pain will occur in the early stages, and that one or more accompanying symptoms will develop over time.

5.2.3 THE PROXIMITY CRITERION

Once it has been established that the consequences of the damage are unforeseeable, further discussion will focus on the proximity criterion in order to clarify whether the cause of the unforeseeable development renders the consequences of the damage inadequate. The proximity criterion stipulates that the consequences of the damage must not be too remote, too derivative or too indirect in relation to the event giving rise to liability.

In order to clarify the content of the proximity criterion, it is necessary to look specifically at the circumstances in the relevant judgments that have led to the damage becoming unpredictable.

A review of the adequacy judgments shows that in the judgments where the consequences of the damage were considered inadequate, the consequences of the damage in all cases were influenced by circumstances that arose later and had a negative impact on the consequences of the damage.

In the Rossnes judgment, Rt. 1997 p. 1, it states on page 10:

According to hospital records dated January 26, 1990, she stated that "on the day she became ill, she saw the cat jump on the parakeet, which then died in her hands. Her voice disappeared and she lost strength in her left arm and leg."

The consequences of the damage were largely influenced by external circumstances that were not causally related to the accident. If the unforeseeable consequences of the damage are essentially the result of external circumstances that are not causally related to the event giving rise to liability, this will clearly give rise to inadequacy.

In the Thelle judgment, Rt. 2000 p. 418, the key point regarding the cause of the unpredictable damage development can be found on page 433:

" – so that we are faced with a completely unusual course of illness in A, which must largely be due to circumstances that arose some time after the collision."

The decisive factor was that circumstances arose that were not causally related to the accident and that led to the unforeseeable – a completely unusual course of illness.

The Thelle ruling also emphasized that the injured party's motor vehicle was only exposed to insignificant forces in the accident. However, the forces themselves were not sufficient to cause inadequacy; the subsequent circumstances were decisive.

Small forces are therefore a factor, but not sufficient on their own to constitute inadequacy. However, if the forces are too insignificant, this may mean that the requirement for damage potential under the four conditions is not met. The Ask judgment follows suit in that there were also external circumstances that were not causally related to the accident, cf. section 67:

“… anxiety and vulnerability in the injured party, combined with social and societal factors, contribute to the development of the disorder.”

In the Biseth judgment, Rt. 2007 p. 158, the circumstances that led to the significant deterioration and removed the consequences of the accident are discussed in section 78:

“However, what has been decisive for me is that when the development of the disease is largely due to behavior that contravenes clear and repeated medical advice, this is a development for which A, as Weisæth puts it, must bear significant responsibility.”

The fact that the injured party did not follow medical advice is a circumstance that is causally related to the accident. However, the problem for the injured party was that the circumstance that occurred long after the accident was clearly indirect in relation to the traffic accident.

In the Jæger judgment, Rt. 2007 p. 172, the circumstances that removed the consequences of the accident are discussed in section 69:

“It was not the fall itself, but rather the negative consequences of the accident that contributed to the development of A’s schizophrenia – in particular, the fact that he lost important leisure activities, his previous job, and that he underwent unsuccessful rehabilitation. ... There is also reason to believe that the development of the illness was significantly influenced by the breakup of his relationship – an external factor that was unrelated to the accident."

The Bisæth ruling, and in particular the Jæger ruling, differ from the other rulings in that emphasis was placed on circumstances that are causally related to the accident (loss of leisure activities, loss of work, and failed rehabilitation), and factors that are not causally related to the accident (the breakup of the relationship).

Until the Jæger and Bisæth judgments, it could be argued by the injured party that an unforeseeable consequence of damage would not be inadequate as long as the unforeseeable consequence was triggered by factors that were causally related to the accident, even if the causal link was not direct.

However, these judgments imply that the consequences of the damage may be inadequate even if the unforeseeable event is a consequence of factors that have a weak causal connection with the accident.

5.2.4 SUMMARY OF ADEQUACY

It will be difficult to establish any specific rules for adequacy. However, case law provides a distinction between the Nilsen and Dispril judgments on the one hand, and the other adequacy judgments mentioned on the other. This distinction reflects an approach to the factors that are relevant to the discussion.

This can be summarized as follows:

a) Unpredictability is a necessary but not sufficient condition for inadequacy.

b) For an unforeseeable consequence of damage to be inadequate, the consequence of damage must be significantly influenced by subsequent circumstances, such as

c) has resulted in the damage being too remote, too derivative or too indirect in relation to the event giving rise to liability.

A deterioration that occurs at a late stage will therefore not in itself be sufficient to constitute inadequacy. The decisive factor will be why the deterioration occurs.

Adequacy was not a major issue in the Ask case, and is not discussed in detail in the judgment beyond pointing out that the perpetrator's argument regarding inadequacy could also have been successful. The judgment does not contribute anything new to the discussion of adequacy.

5.3 THE SIGNIFICANCE OF MINOR MEDICAL DISABILITY AND MAJOR OCCUPATIONAL DISABILITY

In the Ask judgment, the experts raise a question about the connection between medical disability and occupational disability, which may have practical significance. Paragraph 68 states:

“I would like to point out here that mild neck pain in itself does not normally constitute grounds for declaring a person unfit for work.”

It is sometimes argued by the party causing the injury that it is unpredictable and inadequate when a minor medical disability has resulted in significant permanent occupational disability.

According to the disability table in the Regulations on Compensation for Occupational Injuries of April 21, 1997, sections 2.1.1 and 2.1.2, a neck injury without objective findings (WAD I and II) may be given a medical disability rating of up to 19%. Medical practice shows that in most cases the degree of disability is set lower, and often much lower.

At the same time, settlement practice shows that a large number of whiplash injury victims with relatively low medical disability ratings are unable to work, either fully or partially. It is therefore not unreasonable, and thus not inadequate, that WAD grades I and II result in a greater or lesser loss of working capacity.

Since the Supreme Court assessed the connection between medical disability and occupational disability in the Ask ruling, it is natural to clarify the practical significance of this.

5.3.1 MINOR NECK PROBLEMS ALONE DO NOT NORMALLY RESULT IN DISABILITY

Ask's injury-related symptoms consisted of mild to moderate pain in the neck, which the experts assessed as a medical disability of 5 percent.

The experts, with the support of the Supreme Court, believed that the injury-related mild neck pain alone should not result in a permanent reduction in working capacity. This is stated in section 60:

“According to experts, mild neck pain is a condition that is very common among the general population. ... In my opinion, such moderate neck pain alone cannot be grounds for incapacity for work.”

The Supreme Court categorically rejected the notion that mild neck pain could result in incapacity for work. For the vast majority, this is naturally correct. At the same time, there are cases in practice where such ailments do have an impact on a person's ability to work. The Supreme Court therefore moderated this somewhat categorical statement. This is evident in section 68:

"... mild neck pain in itself does not normally constitute grounds for determining incapacity for work."

I have emphasized "normally not" to highlight the moderation implied in paragraph 68, in relation to paragraph 60. What the Supreme Court is thus expressing is that a medical disability of 5 percent does not, in most cases, result in occupational disability.

5.3.2 EASE NECK PAIN AND RELATED SYMPTOMS

There can be little disagreement that mild neck pain alone should not normally result in permanent occupational disability.

However, the Ask ruling is a somewhat unusual case, as the injured party's only complaint related to the neck injury is mild neck pain. Most injured parties with chronic neck pain develop so-called accompanying symptoms in addition to neck pain. Several studies, including the SMM report and "Whiplash-associated neck injuries," have shown that accompanying symptoms are common and predictable.

Accompanying symptoms are also described in the Regulations on Compensation for Pain and Suffering. Section 2.1 of the Regulations applies to injuries to the cervical spine, including neck distortion injuries, often referred to as whiplash injuries. The section states:

“The psychological and autonomic symptoms that may accompany the condition are inherent in the injury (e.g., pain-related concentration and memory impairment, increased fatigue, irritability, dizziness, sweating, urinary problems, and sexual dysfunction without detectable objective neurological outcomes/findings).”

These are conditions that very often occur as secondary conditions, or as accompaniments, to whiplash injuries. If such problems are in addition to chronic pain, it is not difficult to imagine that problems with functioning at work may arise some time after the accident. Particularly for patients where cognitive impairment such as memory and concentration problems accompany permanent neck pain, problems often arise with functioning at work in the same way as before the injury.

It is not unreasonable that chronic moderate and mild neck pain, which causes accompanying symptoms, can result in permanent and significant occupational disability.

The relationship between low medical disability and greater occupational disability came to a head in a ruling handed down by Agder Court of Appeal a few weeks after the Ask ruling. The Court of Appeal's ruling, LA-2010-028384, dated December 28, 2010, states on page 9:

“A medical disability as low as 5% will rarely result in a significant reduction in earning capacity. However, the Court of Appeal agrees with A that one cannot automatically reject the claim for compensation on this basis alone. Such a low degree of medical disability may in some cases result in a significant reduction in earning capacity. It depends on a very specific assessment of the individual injured party's situation."

It is not difficult to agree with the Court of Appeal's view that the solution must be found in a specific assessment of the individual injured party, and that the injuring party must accept that for some unfortunate injured parties, a minor medical disability will result in significant occupational disability.

6. SUMMARY AND CONCLUSION

The injured party suffered whiplash in a traffic accident in May 2002. He later developed general pain throughout his body, which in turn led to a loss of working capacity and thus to financial loss. Ask claimed that he suffered a moderate neck injury in the accident, which over time developed into general pain throughout his body with permanent severe pain in his stomach, back, both arms, and both legs.

The Traffic Insurance Association argued that there was no causal link between the accident and the neck injury, or between the accident and the general pain condition.

The Supreme Court discussed whether permanent whiplash injury should essentially be understood on the basis of a biopsychosocial explanatory model, or whether the understanding that permanent neck pain is a consequence of traumatic physical soft tissue injury should be maintained.

The Supreme Court ruled that the four conditions established in the Lie judgment (Rt. 1998 p. 1565) shall continue to apply in the specific assessment of causation. The Lie judgment is based on the fact that the pain is a consequence of physical soft tissue damage.

The experts appointed by the Supreme Court concluded that the four conditions for causality were met in relation to the neck injury, but not in relation to the general pain condition. The Supreme Court agreed with this conclusion. The Traffic Insurance Association was acquitted because it was the general pain condition that was considered to be the cause of the financial loss.

In future cases involving whiplash injuries, the Supreme Court's assessments of the Four Conditions in relation to neck injuries will be of significance.

With regard to the four conditions, the parties agreed that the criterion of damage was met. However, the Supreme Court's statements on this condition suggest that even low-energy accidents can cause permanent damage.

The Traffic Insurance Association strongly argued that the requirement for acute symptoms and bridge symptoms was not met in relation to the neck injury. Despite the fact that the Supreme Court applied "strict documentation requirements" and despite the fact that acute and bridge symptoms were not optimally documented, it was concluded that these conditions were met.

The question of whether there was pre-existing disability, and the question of whether there could be other causes for the neck pain, were not considered by the Supreme Court.

With regard to the compatibility criterion, the Supreme Court found that it was not met in relation to the generalized pain condition. It is not difficult to agree with the Supreme Court that the generalized pain condition that Ask developed long after the accident is not compatible with a whiplash injury.

However, the Supreme Court found that the compatibility requirement was met in relation to the neck injury. It was considered compatible with a whiplash injury that the symptoms, which occurred acutely, disappeared after a few hours and then returned later as chronic pain.

At first glance, the Ask ruling may appear to limit the injured party's ability to establish a causal link. This is due to the Supreme Court's discussion of the biopsychosocial explanatory model, and not least to the fact that the medical research presented to the Supreme Court by Dr. Stovner must be described as one-sided.

The ruling is an example of how the courts, including the Supreme Court, are at the mercy of the professional opinions that more or less randomly appointed experts bring to court.

However, a more thorough analysis of the judgment shows that the Supreme Court applies the same principles that were laid down in the Lie judgment and that have been applied in the courts since then. Nor does the judgment entail any change in the adequacy discussion.

The author of the article, lawyer Einar I. Lohne, is a partner at the law firm Langseth. Lohne is admitted to the Supreme Court and has conducted several hundred compensation cases for injured parties in courts throughout the country. He regularly gives lectures to lawyers and injured parties, and in 2020 he published the book Erstatningsoppgjør (Compensation Settlements) with Gyldendal publishing house. Lohne is a member of the Norwegian Bar Association's legal committee for compensation.