Whiplash Reforms

Amongst the Covid-19 pandemic, on 21^st April 2020 Robert Buckland announced that the implementation date for the proposed Whiplash reforms has been put back from 1^st August 2020 until “April 2021”. It is therefore opportune to consider the proposed reforms and perhaps dream of a day when such cases actually appear before the Courts once more.

The starting point is the Civil Liability Act 2018 and the definition of whiplash. A case falls within the Act if it is “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)“. Subsection 2 states that “An injury falls within this subsection if it is (a) a sprain, strain, tear or 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. However subsection 3 states that “An injury is excepted by this subsection if (a) it is an injury of soft tissue which is 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).  The Act is limited to cases where the whiplash symptoms have lasted for two years or less.

For cases falling within the above definition there will be a tariff for the General Damages. There is at present only a proposed tariff contained within the draft Whiplash Injury Regulations. Needless to say the proposed figures are significantly lower than the current JC Guidelines and give rise to awards ranged in the hundreds as opposed to thousands of pounds.

In relation to psychological injuries if the Claimant suffers “one or more minor psychological injuries on the same occasion as the whiplash injury” then the amount of damages will again be set by regulations. The current draft regulations have the same figure for cases with or without minor psychological injuries. Surprisingly there is no definition yet of when a psychological injury is minor or what it is that renders it minor.

Finally, Claimants will not be able to settle claims before they obtain a medical report.

The Act applies to those using a motor vehicle or those being carried in a motor vehicle. Pedestrians, motorcyclists and cyclists are excluded and their damages fall to be assessed under the existing JC Guidelines.

A second part of the proposals is that the Small Claims track limit for general damages in cases falling within the Act is to increase from £1,000 to £5,000. It is the intention that children will be excluded from this increase. It is not yet clear whether children will be excluded from the Act as well or merely the increased limit.

In order to meet the expected increase in Litigants in Person there will be a new Pre-Action Protocol with an associated Online Portal. The intention is that all claims within the Civil Liability Act will be pursued through this portal. The front page for the website is live https://www.officialinjuryclaim.org.uk. However until the new Pre Action Protocol is drafted the operation of the portal is unknown.

Unfortunately, ADR which had been seen as central to the changes has been quietly withdrawn. There is therefore no pre action system in place for litigants in person to contest liability or who are uncertain of the value of the claim. Instead if they do not settle for the offer made by the Defendant their only option is to issue the claim. This may be of a particular concern given that Part 36 does not apply to the Small Claims track.

How much of this proposed scheme will survive further and more detailed scrutiny now that its implementation date has been put back again remains to be seen. Whether the chaos that the changes are likely to release is worth the government’s own estimate of a saving of £35 per Insurance policy is a matter of personal taste.

This article first appeared in The Voice, the monthly newsletter of the Forum of Insurance Lawyers (FOIL).