Whiplash Injury Law Reforms

Making a personal injury claim can feel like a complicated process without the help of a personal injury solicitor. From 31st May 2021, there will be changes to the law which will mean that claiming compensation for injuries resulting from a road traffic accident might become increasingly difficult.

Any accident can be very frustrating, but it can feel even worse if it wasn’t your fault. Fortunately, whenever it happened a solicitor can help you claim compensation for your injury and the effects it’s had on your day-to-day life. The compensation you receive can help to cover the financial and emotional impacts of your injuries.

If you’d like to find out more about how the claims process works, visit our claims process page. Or, you can get in touch with a trained legal adviser for free on 0800 234 6438. They’ll never push you into making a claim but give you free, friendly advice and can let you know whether they think you can make a claim.

Big changes to the way many personal injury claims are to be made came into force on 31st May 2021. If you get injured and want to make a personal injury compensation claim you could be affected, particularly if it relates to a road traffic accident (RTA) that occurs after the implementation date. The reforms were due to be implemented on 6th April 2020 were delayed until 31st May 2021. The changes are ostensibly intended to reduce the number of exaggerated or fraudulent RTA-related soft tissue injury claims that have been a scourge of insurance companies – this includes injuries such as sprains and whiplash.

But the reality is that access to justice will be reduced to protect insurers’ pockets – and claimants who do make a successful claim are likely to receive less compensation than before the legal reforms.

Also, there are wider concerns around the lack of clarity on vital issues, such as how claims on behalf of children will be handled, and those circumstances where not all of the victim’s injuries would be covered by the new rules.

So how could you be affected? The Civil Liability Act 2018 creates a range of reforms which could cost potential claimants dearly compared to making claims under the previous rules. Individuals suffering whiplash and other relatively minor soft tissue injuries through no fault of their own will be caught by the Act.

There is a new definition for a whiplash injury – defined as a soft tissue injury in the neck, back or shoulder which amounts to a sprain, strain, tear, rupture or lesser damage to (or a soft tissue injury associated with) a muscle, tendon or ligament in the neck, back or shoulder.

However, the following do not constitute whiplash injuries for the purposes of the new rules: soft tissue injuries which are part of/connected to another injury, where that other injury is not a whiplash injury within the new definition.

This only applies to injuries that arise out of an RTA – specifically, for motor vehicle drivers and passengers. It does not apply to ‘vulnerable’ road users such as motorcyclists, cyclists, pedestrians and horse riders.

If you are a ‘vulnerable’ road user, the rules will not apply to you. However, it remains unclear whether the rules will apply to claims on behalf of children or to other vulnerable claimants who lack mental capacity, and if they do – to what extent.

The Small Claims Court is a court that specifically deals with low-value claims. It was set up so that claimants could make a small personal injury claim (or money claims) online themselves without using a specialist solicitor if they chose to.

The previous small claims limit for any claim for pain, suffering and loss of amenity was £1,000. Under the new rules, this will be raised to £5,000 for RTA-related injury claims including whiplash; and £2,000 for employers and public liability claims. The limit for vulnerable road users will remain the same at £1,000.

A new ‘self-service’ online portal – called Official Injury Claim – has been created. With the new rules in force, individuals are supposedly able to make their injury claims easily and securely. Lawyers will also be able to use the portal.

Claimants using the portal will be guided through the process of making a claim themselves. Essentially, they will submit the initial details through the portal. It’s important to remember that medical expert evidence will be needed, and you might receive a compensation offer as a result. However, the new rules do not allow a claimant to offer to settle a whiplash claim without appropriate medical evidence, which without the help of a personal injury lawyer can be difficult to get.

Further details on how the system will work in practice are not yet available but we will update this article when more information is released.

The portal itself is a free service but claimants will have to pay the cost of obtaining an expert medical report (currently fixed at £180). Claimants will also have to pay any legal costs if they decide to use a solicitor after this, and even if they are successful, they will likely have to pay their own legal costs.

Under the previous rules, where a claimant won less than £5,000 (but more than £1,000) in compensation, the general rule was that the losing party paid the claimant’s costs. With the new rules now in effect, many claimants will have no option but to represent themselves without legal advice because they will not be able to afford to pay for specialist legal help.

The new rules include a set tariff system of compensation for soft tissue injuries, but it does not spell good news for claimants – compensation payouts will be significantly lower than they were previously. For example, an injury lasting up to three months could be compensated in the region of £225 under the new system, compared to £1,750 on average previously; and the amount payable for an injury lasting 9-12 months could fall from £4,000 to £1,250.

Making a whiplash injury claim is likely to be more difficult and costly under the new rules. A claim is, for example, highly unlikely to be accepted without expert medical evidence so costs will be incurred. A major issue for some injured claimants is that because they will have to make their injury claim under £5,000 through the portal, they are far less likely to take specialist legal advice before doing so. The risk is they claim far less than they would otherwise be entitled to and they may well be unable to argue their legal rights against the other side without legal representation.

It may deter genuine claimants from making a claim; and the most vulnerable people will be those who would be the least likely to try to make a claim now that the changes are implemented.

Insurance companies are a major driving force behind the reforms. The new rules are, after all, intended to reduce the number of “low value” claims. However, as the big guns, insurers can deny liability regardless of the strength of the case or make an unreasonably low offer to settle. The claimant (probably unrepresented) is then at a major disadvantage and could easily be deterred from pursuing their claim against a large insurance company and its lawyers.

The cost of expert reports will be a key cause of financial concern for claimants. The Association of Personal Injury Lawyers (APIL) has called for medical reports to be free for all claimants, whether or not liability is admitted.

With the changes now finally implemented, they will have a negative impact on access to justice – meaning many genuine potential claimants will be put off making a compensation claim because of the costs and the risks involved. People with small claims who cannot afford to employ a solicitor to help them will be hardest hit.

They will be left with the choice of navigating the claims process without a lawyer – or deciding not to claim the compensation to which they are legally entitled. It’s not inconceivable that a claim could be made against the government for breaching individuals’ human rights.

In most cases, you have three years after your accident to start legal proceedings for injury compensation and that will remain the position with the new whiplash reforms now in force. If you don’t bring your claim within three years, you risk being ‘time-barred’ under the Limitation Act 1980. There are exceptions to the three-year limitation period:

• If you are a parent or carer claiming on behalf of a child, the three years does not start to run until they reach 18
• If the injured person is mentally unable to make a claim in their own name (they may have a mental disability, or the injuries may have affected their mental capacity), the three years starts to run only when they have regained their mental capacity

If you’ve been injured in an accident, and wish to talk to someone about making a claim, you can contact a trained legal adviser for free on 0800 234 6438. If they think you have a claim, and you want to proceed, they will put you in touch with an expert injury solicitor.

You should try to gather together as much information and evidence as you can to help get your claim started. Your solicitor will want to see:

• any photographs you have of the location of the accident and of your original injuries
• any sketch showing how the accident happened
• a police incident report
• copies of any entry in an accident log book
• any diary you have kept that may be relevant
• details of witnesses

You will also need to give your solicitor the contact details of your doctor and any relevant hospital details so that they can request your medical records.