Thomas O’Sullivan considers the impact of the whiplash reforms and raise in the small claims limit.
By Thomas O’Sullivan, Trainee Chartered Legal Executive
Monday 31 May 2021 could be an important date in your life.
I hope this never happens, but if you are unfortunate enough to be injured in a road traffic accident on or after that date, when it happened could make a difference of thousands of pounds in compensation and a huge amount of extra stress.
Why?
Because from Monday new rules about accident claims in the Civil Liability Act 2018 come into effect.
What is the Civil Liability Act (2018)?
The Civil Liability Act is a UK law which passed on 20 December 2018.
Among other things, it affects innocent accident victims who were involved in road traffic accidents on or after 31 May 2021.
It does this by raising the small claims limit from £1,000 to £5,000 for personal injuries (with a £10,000 maximum for the overall claim) suffered in road traffic accidents.
Exceptions
There are exceptions to some of the issues caused by the higher small claims limit for motorcyclists, pillion passengers, children, and others.
But most people claiming whiplash-type injuries will be impacted by the increase.
The new rules affect many road traffic accident victims who claim compensation because those people:
- do not fall within the exceptions, and
- often suffer whiplash-type injuries.
The Civil Liability Act also introduced changes to the law, which are known collectively as “the whiplash reforms”.
What are the Whiplash Reforms?
The whiplash reforms are changes to the way claimants in certain low value road traffic accident claims are compensated. The reforms are detailed in the Civil Liability Act 2018 and its supporting statutory instrument, The Whiplash Injury Regulations 2021.
The reforms set compensation awards for whiplash injuries based on a tariff and outline the procedure by which claimants can seek damages.
What are Whiplash Injuries?
The Civil Liability Act defines whiplash broadly:
“Whiplash injury” etc
(1)In this Part “whiplash injury” means an injury of soft tissue in the neck, back or shoulder that is of a description falling within subsection (2), but not including an injury excepted by subsection (3).
(2)An injury falls within this subsection if it is—
(a)a sprain, strain, tear, rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder, or
(b)an injury of soft tissue associated with a muscle, tendon or ligament in the neck, back or shoulder.
Does that sit right with you? Would you consider a ruptured back ligament or tendon “whiplash”? Many wouldn’t. The serious nature of these injuries undermines the idea that whiplash is something people claim just because they can.
But it’s not all bad. The Act has exceptions for other personal injuries:
(3)An injury is excepted by this subsection if—
(a)it is an injury of soft tissue which is a part of or connected to another injury, and
(b)the other injury is not an injury of soft tissue in the neck, back or shoulder of a description falling within subsection (2).
Why Does Raising the Small Claims Limit Matter in Road Accident Claims?
Insurers have tried for years to cut the number of whiplash claims by blaming the non-existent compensation culture.
The government bought into the myth and introduced the whiplash reforms, increasing the small claims limit from £1,000 to £5,000 for personal injuries (£10,000 overall) in road traffic accidents in the process. It justified the changes by claiming that the reforms will reduce insurance premiums, even though past experience suggests that this promise is false.
But these reforms don’t just affect whiplash injury victims.
As the government explains here, “personal injuries” in road accident claims include, but are not limited to, whiplash injuries.
So even people who are injured in a car crash but do not claim whiplash could still be caught by the rule change and find that their personal injury cases are considered “small claims”.
Legal Costs in Small Claims Cases
So what?
Legal costs are not recoverable in small claims. Instead, only very limited costs are payable by the losing party, mostly for things like court fees.
As a result, many road accident injury claimants who want compensation on or after 31 May 2021 will:
- submit claims themselves using a government-run “portal” on the Official Injury Claim website, and
- get whiplash compensation based on a fixed tariff.
Tariff System to Calculate Whiplash Injuries
If:
- the responsible party’s insurers admit liability in a road traffic accident claim in which whiplash suffered in a vehicle (other than a motorcycle) is claimed
- the injured victim recovers (or is expected to recover) within two years
the insurers will offer whiplash compensation based on a fixed-fee tariff.
(Whiplash injuries which last more than two years are not calculated on the tariff system.)
The tariff system will be used instead of calculating damages by reference to previous cases and judicial guidelines.
The effect of this is that most people suffering whiplash injuries after 31 May will receive significantly less compensation than before.
This is because of the fixed amounts in the tariff, which apply to cases where claimants recover within two years:
Tariff of compensation for whiplash injuries.
The second column shows the amount of compensation for basic whiplash injuries. The third shows the amount for whiplash + one or more minor psychological injuries suffered on the same occasion as the whiplash injury or injuries. And note that there are circumstances where an uplift on the tariff amounts could be claimed, but it is not expected to apply to most cases.
As a Trainee Chartered Legal Executive with many years’ experience in personal injury claims, I know that these figures are significantly lower than those my clients presently receive. For many, the paltry amounts of compensation payable will not be worth the effort involved.
I’m not alone in thinking that the tariff compensation awards for whiplash are inadequate.
The Civil Justice Council, whose “primary role is to advise the Lord Chancellor, the Judiciary and the Civil Procedure Rule Committee on civil matters” noted that:
The introduction of the tariff will reduce general damages for the whiplash element of a motor-related personal injury claim.
Unfair Treatment of Whiplash Injury Victims
On my reading of the Civil Liability Act, a torn wrist ligament (which can happen when drivers hold the steering wheel tightly in a crash) is outside of the scope of the whiplash reforms.
Compensation for that would be calculated using judicial guidelines and case law (with expert help from a lawyer if the claim is excluded from the small claims regime).
By contrast, a torn back ligament is included within the Act and would be considered “whiplash”. Its value would be determined by reference to the tariff if the claimant recovered within two years, and the innocent victim would be expected to submit the claim themselves.
As a result of this setup, the torn wrist ligament victim would get more compensation than someone who suffered a torn back ligament.
I’m not sure those who suffer from torn back ligaments would see the sense in that.
The government says the tariff will be reviewed by the Lord Chancellor within three years, and then every three years after that. But it would be naïve to think this will result in meaningful increases for accident victims.
Whiplash compensation amounts have been permanently reduced by this legislation, saving money for insurers and making it less likely that people will claim.
How to Claim for Whiplash After 31 May 2021
The effect of the whiplash reforms is that most people involved in road traffic accidents on or after 31 May 2021, will be expected to bring claims themselves using the Official Injury Claims website “portal”.
Substantial work has been undertaken to ensure that the service provides a fair, accessible and efficient system for all claimants. The service has been carefully designed with the claimant firmly at its heart and provides a modern, user-friendly digital system, supported by guidance. Digitally disadvantaged claimants who are unable to use the system may also seek assistance from the dedicated telephone support centre.
It remains to be seen if the portal delivers on these promises. It is a government-run scheme after all.
Cost to Bring a Small Claim for Personal Injury
Damages may not be agreed in these road traffic accident claims, despite the government’s view that the tariff is fair and that the portal will be easy to use.
If so, the claimant can ask a judge to decide how much their injury claim is worth at a court hearing.
But to do that the innocent claimant must pay expensive court fees out of their own pockets. They could be as high as £1,045 as the government explains here, and might not be paid back.
I don’t think this promotes access to justice, which is often quoted as a government goal, especially when compared to the existing system for those who have personal injury claims which are not part of these reforms. For those claimants, it is common for lawyers to take cases on a “no win no fee” basis and help with court fee payments (e.g. by seeking remission of court fees) on their clients’ behalf.
Why Many Solicitors Will Decline to Act in Whiplash Claims after 31 May
People are free to spend their money how they like, and for some, it might be worthwhile paying a lawyer to handle matters, even if legal fees are not recoverable.
But in most cases, qualified lawyers would advise against this.
Why?
Because we are under a duty to act in our client’s best interests.
Paying a lawyer privately in a small claims case (like a whiplash claim where the claimant recovers in under two years) would result in most, if not all, compensation awarded going towards legal fees. Some unlucky people might even be left out-of-pocket. So what’s the point?
Donoghue Solicitors’ Approach to Road Traffic Accident Claims After 31 May
For this reason, and with great regret, my firm no longer accepts instructions from road traffic accident victims with low-value (under £5,000 for personal injuries, £10,000 overall) and whiplash-type claims.
Anyone who contacts us about bringing such claims will be referred to the Law Society’s find a solicitor service and the Official Injury Claim website.
Despite this, we still represent people in their higher value road traffic accident claims.
Anyone with road traffic accident personal injury claims worth more than £5,000 (or claims worth more than £10,000 overall) should contact me directly for legal help.
(Find out how much your claim is worth by using our compensation calculator. Speak to me or one of my colleagues if you need more information.)
Whiplash Reforms Effect
It is telling that these increases in the small claims limit and the whiplash reforms only apply to road traffic accident claims. For now, other personal injury claims are unaffected.
But it is likely that the whiplash reforms and increase in the small claims limit in road traffic accident claims will make claiming compensation so difficult and financially unattractive that many won’t bother.
For insurers, that’s the point.
It pains me to say it but, in this case, motor insurers and the government won.
Thomas O’Sullivan is a Trainee Chartered Legal Executive at Donoghue Solicitors. Contact him here.