Whiplash Injury Regulations 2021
In her latest blog Personal Injury Solicitor, Natasha Layton, discusses the new whiplash injury regulations that came into force on the 31st May 2021.
The long-anticipated whiplash reforms came into force on 31st May 2021 and apply to any accident that occurs on or after this date. As the reforms are now law, we will look at the intentions behind them and the impact they will have on someone wishing to pursue a claim.
Intentions Behind The Reforms
In short, the reforms are designed to reduce the number of whiplash related claims and ensure that appropriate compensation is paid to genuinely injured claimants. The reforms also aim to reduce the cost spent on whiplash related claims in the hope that this will in turn reduce insurance premiums for motorists.
Definition Of A Whiplash Injury
A legal definition of what constitutes a “whiplash” injury is contained in the Civil Liabilities Act:
“an injury of soft tissue in the neck, back or shoulder that is…. 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 muscle, tendon or ligament in the neck, back or shoulder”.
How Will This Be Achieved?
A significant change is the increase in the small claims track limit from £1,000 to £5,000 for RTA whiplash claims.
Prior to the 31st May 2021, an injury would usually have to be valued at £1,000 or above to warrant the instruction of a solicitor. Under the new reforms, a whiplash injury arising from an RTA must be valued at no less than £5,000 in order for a claimant to pursue a claim with the assistance of a personal injury solicitor. If the injury is deemed to be less than £5,000 then legal costs will not be recoverable from your opponent, except in limited circumstances.
It is anticipated that a high amount of whiplash claims will fall below the new small claims limit and will therefore require the injured person to lodge their own claim electronically via The Official Injury Claim (OIC) portal, without the assistance from a personal injury solicitor. A person who represents themselves in a civil legal action, without the advice, guidance and representation of a lawyer is known as a Litigant in person.
In some circumstances this process may be straightforward, however, where there are issues, such as where liability is denied, a Litigant in Person would have to negotiate and try to bring matters to a successful resolution on their own. This may even require the Litigant in Person to bring the matter to court.
As a Litigant in Person, you would also have to obtain your own medical report from an independent expert who is MedCo accredited.
Whilst there is nothing from stopping you from getting legal representation, under the new reforms, the legal fees for whiplash claims are no longer recoverable from the insurers of the driver at fault. This means that you would have to fund your own legal fees. Therefore, even if your claim is successful you may end up out of pocket because your legal fees could end up costing you more than you get in compensation.
The reforms have also introduced a new tariff system which sets out how much an injured person, suffering from whiplash injuries, will receive in compensation for pain, suffering and loss of amenity for whiplash type injuries with a recovery period of up to two years.
The tariffs aim to provide claimants with clarity, predictability and certainty as to the value of the claim, however there is concern that any compensation awarded is likely to be much lower due to the tariff system.
With that being said, a claimant will be able to seek an uplift of up to 20% to the tariff amount in “exceptional circumstances”. These are broadly defined as when a whiplash injury is exceptionally severe or where circumstances seen as exceptional have increased the pain, suffering and loss of amenity caused by the whiplash injuries.
Exemptions To The New Small Claims Track Limit
There are some exemptions to the new small claims track limit, these include:
• Children and protected parties;
• Where the claimant is a “vulnerable road user”, which means, motor cyclists and pillion/sidecar passengers, cyclists, pedestrians, horse riders and those using mobility scooters;
• Where, on the date that proceedings are started, the claimant is an undischarged bankrupt, or
• The claimant or defendant acts as a personal representative of a deceased person; and
• Where, on the date that the accident occurred, the defendant’s vehicle was registered outside of the United Kingdom
Impact Of The Reforms
The increase in small claims track means that there will be more unrepresented claimants known as Litigants in Person.
Representing yourself as a Litigant in Person in a complex process can be stressful and daunting.
There is justified concern that the new reforms will restrict access to justice for those who have been injured through no fault of their own by deterring genuinely injured claimants from rightfully seeking the compensation they deserve.
Whilst we hope that the reforms will decrease insurance premiums across the board, the true impact is yet to be seen.
Natasha Layton
June 2021