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Whiplash Reform – Is it worth the wait?

Proposed reforms to whiplash claims have been in the pipeline since the Civil Liability Act 2018 “CLA”.

The reforms follow intense lobbying from motor insurers . Whiplash has had a lot of bad press. Many regard whiplash claims as exaggerated or even fraudulent. In 2017 there were nearly 180,000 road accident injuries. Most of these will fall into the whiplash category. The idea is that by reducing the level of compensation and bypassing lawyers, we can root out fraud, reduce the costs of dealing with claims and this will lead to a reduction in motor premiums.

The reforms have sadly been beset by delay – firstly to August 2020 and then to April 2021. On 11 January 2021, the Lord Chancellor announced another short delay to May 2021. We now have a new start date but still not much detail. Some of the key known facts are summarised below.

Definition

The CLA defines whiplash 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’.

Tariff

There will be a set tariff for whiplash injuries (including also minor psychological injury) lasting up to 2 years. The expectation is that the tariff values will be far lower than current levels of compensation paid (the amounts are subject to speculation and are yet to be published).

Process

Claimants with low value claims should not require a lawyer and will instead use a new and simple online claims portal (yet to be demonstrated) created by the Motor insurers Bureau, called the Injury Claim Service. New rules and protocols (yet to be published) will run alongside this new process.

However, if the insurer denies responsibility for the accident, the case will come out of the Injury Claim Service, the injured party will then need to issue their claim and this will then be decided in the small claims court. If the Claimant wins at court, the case goes back into the online claim service. There will be an element of “hopping” between different legal systems.

The small claims limit (which does not allow recovery of legal costs) is currently £1,000 and will increase:

  • for RTA injuries to £5,000
  • for all other injuries to £2,000

The proposal is there will be no increase for cyclists and pedestrians. The Small Claims Court will not apply to children or those who do not have mental capacity.

Worth it?

There is a concern that there may not be much of a drop in the number of claims and yet insurers will spend far more time dealing with claimants who have no legal support. Insurers will also need to ensure that they are not accused of taking advantage of claimants as could result in enforcement by the FCA and damage their reputation. Courts are also likely to be under pressure if it has to deal with thousands more litigants representing themselves.

Whatever the final detail, what is clear is that individuals who suffer soft tissue injuries in a road accident will be following a different path in the legal system to everyone else. This would seem arbitrary and against the maxim that all people should be treated equally under the law.

The further delay is understandable, and the key to success with this new project will be simplicity and certainty. It is a shame that the same principal has not been followed during the creation of the new reforms.

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