Whiplash has been one of the biggest sources of personal injury claims for years. Normally associated with car accidents, whiplash is the hyperextension of the soft tissue around the neck and base of the skull when the head is thrown forward and then back with force. Despite the serious implications of whiplash, it got a bad press during the last 20 years due to its association with ‘cash for crash’ or fraudulent claims. That was compounded by the fact that the majority of people simply didn’t understand how debilitating it could actually be and regarded all whiplash claims, regardless of their authenticity, as scams.
It was often seen as the chance to claim some ‘free money’ by the unscrupulous. Due to the vagueness of the diagnosis methodology and the wide-ranging symptoms associated with whiplash, it was often difficult to determine whether or not an injury was a direct result of a car accident, for example. That made it difficult to apportion blame, and whiplash claims have always been a little muddy, to say the least.
Is it worth claiming?
Currently, an injury must be regarded as being worth more than £1000 in compensation for a solicitor to become involved in the process, as legal fees cannot be recovered below that level. Put simply, whiplash claims of under £1000 simply aren’t worth taking on, as the solicitor will have to charge the claimant fees, which will pretty much wipe out the value of the claim.
As of May 2021, new reforms to whiplash injury compensation legislation come into force, and one of the biggest changes is that the £1000 level will rise to £5000. So even more serious claims will not cover legal fees, meaning more people will be making claims without the benefit of legal advice.
The DoJ has released the protocol it will be implementing for whiplash claims in the courts, and it represents some pretty fundamental changes. These changes are set out in the Civil Liability Act 2018 but have only just come into effect. This is a result of Chancellor George Osborne’s attempt in 2015 to get whiplash ‘banned’ because of the negative effect the myriad of claims were having on the cost of insurance.
On average, the cost of whiplash claims to motor insurance policyholders added up to £90/annum per policy. That’s a hefty chunk of the overall price of a policy, and after multiple reviews, it was determined that making whiplash claims harder and less ‘profitable’ was the best way to reduce increased premiums that were affecting everyone.
Theoretically, it should have worked. Whiplash claims should have been removed from the system and honest motorists would end up saving money on their insurance costs. However, claims carried on clogging up the courts, policies are still expensive, and whiplash certainly hasn’t been ‘banned’. But the changes due in May could see things start to change more in line with Chancellor Osborne’s original intentions.
What’s in store?
Firstly, let’s look at that hike in the small claims limit for RTAs personal injury claims. The fact that anything under £5000 will no longer be cost bearing means that far more personal injury claims will be less attractive to solicitors as they will find it more difficult to recover costs from the claimant. The costs will also eat into the compensation money awarded, again making the whole process far less attractive to ‘cash for crash’ claimants out to make a quick buck. It will also put off the no-win-no-fee brigade, making taking on small personal injury claims unappealing for the legal industry in general.
Secondly, the Act brings in a new tariff for whiplash claims, making the amount awarded fixed in law. The levels are also pretty low. For example, whereas a 0-3 month injury claim (citing whiplash as the primary cause for pain, disability or discomfort for a period of up to 3 months) drops from £1500 to just £250. The tariff will only apply to whiplash injuries (including minor psychological injuries as well as physical injuries).
Because the legal profession is predicted to drop whiplash claims like the proverbial hot potato, a new portal will be introduced where victims can bring their own insurance claims without the use of a legal representative. Whether or not this is a good thing remains to be seen, but there are concerns that it removes the legal support system from victims who may have suffered much more as a result of an RTA than a ‘stiff neck’.
Finally, a ban on pre-medical offers means that every whiplash claim will need to be substantiated with solid proof in the form of a medical report. Pre-medical claims will become a thing of the past.
Who does this apply to?
Everyone in England and Wales making a whiplash claim will be affected by the legislation as of 31st May 2021. The legislation isn’t going to be grandfathered onto claims that were initiated previous to that date, so for a while, things could get very confusing.
It only applies to car and van drivers, and excludes ‘vulnerable’ road users such as pedestrians, motorcyclists, cyclists and mobility scooter users. Claims made on behalf of a child by a parent or guardian will be subject to the tariff. Claims for rehabilitation costs are still part of the process as ‘injury-related damages’ just as they are currently.
Overall, the legislation is designed to cut the number of scurrilous claims, cash-for-crash and fraudulent claims, and to generally make whiplash personal injury claims more unappealing for both the legal profession and the claimants. However, it doesn’t take into account the potential seriousness of associated injuries and the trauma of RTA injuries. It is always important to talk to a legal professional specialising in personal injury claims if you have been hurt in an accident.
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