March 22, 2021
After much delay and debate, we finally have a date! The whiplash reforms are due to come into force on the 31st May 2021 – and they mean big changes for Claimants!
What is a whiplash injury?
A whiplash injury is one of the most common claims following a road traffic accident. Symptoms can vary from a very mild, tingling sensation, to severe pain lasting for many months.
Whiplash is defined in Civil Liability Act 2018 as “a sprain, strain, tear, rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder, or an injury of soft tissue associated with a muscle, tendon or ligament in the neck, back or shoulder.”
What are the changes?
The reforms will amend the Small Claims Track limit for personal injury claims arising from Road Traffic Accidents from £1,000 to £5,000.
It also increases the Small Claims Track limit for other personal injury claims (such as employers’ liability) from £1,000 to £2,000.
There will be a new portal for Claimants to submit their claims and a new tariff for the calculation of damages. The damages tariff is much lower than the current valuations and this is intended to reduce the cost of motor insurance across the population.
|Duration of injury
|Simple, lower rate
|Higher rate, including some psychological injury
|Less than 3 months
|3 to 6 months
|6 to 9 months
|9 to 12 months
|12 to 15 months
|15 to 18 months
|18 to 24 months
Does it apply to all claims?
No. there are exceptions to the new protocol, including vulnerable road users (such as pedestrians, horse riders or cyclists) and claims against the MIB for untraced drivers. The new Small Claims limit will not apply to children or those lacking capacity.
What does that mean in practical terms?
The recoverability of certain elements of a claim will be severely curtailed. For example, if your case is allocated to the Small Claims Track, you will not be able to recover legal fees, effectively meaning that you need to deal with your claim without legal representation, unless you are able to pay privately.
This means that Claimants will need to manage their claim for personal injuries themselves, including submitting the claim, arranging medical evidence through the portal and negotiating a settlement.
There are also amendments to the Civil Procedure Rules which govern how civil claims are managed. If liability is not accepted early on in the claim, the new portal process allows for a trial on liability only. If the Claimant successfully establishes liability at this stage, they will then need to proceed to obtaining medical evidence and negotiating a settlement. If the settlement cannot be agreed, there is a further provision for a second trial on quantum only – that is the amount of compensation due to the Claimant.
There are obvious concerns relating Claimants managing their own claims. These include whether the new process will put people off of making a claim where they are entitled to do so. Further concerns have been raised about how Defendant insurers will manage claims directly from members of the public and whether the additional administration of claims will negate the savings made by reducing the valuation of claims.
The whiplash regulations can be found here: https://www.legislation.gov.uk/ukdsi/2021/9780348220612/pdfs/ukdsi_9780348220612_en.pdf
The amendments to the Civil Procedure rules can be found here: http://www.justice.gov.uk/courts/procedure-rules/civil
The Civil Liability Act can be found here: https://www.legislation.gov.uk/ukpga/2018/29/contents/enacted