Why justice allows what cannot be

In his contribution to the celebration publication in honour of Prof. Dr iur. Erwin Murer, 2010, Zum Mysterium des "helvetischen Schleudertraumas" oder die Diskriminierung von organisch Geschädigten (The mystery of Helvetian whiplash or discrimination against the organ-damaged), Rolf P. Steinegger explores the issue of whether the courts favour an applicant who alleges whiplash. The author argues the question by dint of two court judgements. In both cases the applicant alleges to have sustained whiplash and, as a result, is constantly suffering from medical complaints. In both cases the claim is based on a minor accident.
The author substantiates the favourable treatment of the CS (cervical spine) patient by the law courts. The duty of medical experts and those who apply the law comprises "viewing the world" and identifying the "interests" behind the initiated claims and to then rigorously restrict same to the factual reality.
For a long time, the courts had difficulty in fulfilling this task. In cases where causality was unclear, they were only too eager to follow the junk science and irrelevant judgement criteria, as presented by interested circles. In many cases, this doctrine was starting to question the common sense of the judge and the logic of judicial conclusions.
The loopholes caused by case law already in 1991, established a billion-dollar market in Switzerland. In the end, Swiss insurers were paying approximately 23 x more per CS case than the country with the lowest average claims expenditure. This was the cold reality which could have been avoided by the responsible courts.
The author furthermore reaches the conclusion that organ-damaged patients, namely patients with verifiable ailments, are disadvantaged by the same courts.

Rolf P. Steinegger, Zum Mysterium des "helvetischen Schleudertraumas" oder die Diskriminierung von organisch Geschädigten, Why justice allows what cannot be, in the celebration publication in honour of Erwin Murer, 2010, available at Verlag Stämpfli AG Bern.

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