The changes represent a substantial departure from the long-held underlying legal principle that accident victims should receive fair, reasonable and just compensation. What is fair, reasonable and just may be a matter of opinion but as Judge Swift said in the case of Whiten v St George’s Healthcare “The level must also not result in injustice to the defendant, and it must not be out of accord with what society as a whole would perceive as being reasonable.”
Until now we have left the decision making to the Judges but, with the introduction of The Whiplash Injury Regulations 2021, decades of judicial decisions are being swept aside. For example, currently the pain and suffering associated with a three-month whiplash injury results in compensation of up to £2,300.00 (see Judicial College Guidelines 15th Edition). From 1 June the tariff is fixed at £240.00 (or £260.00 if at the same time you have a minor psychological injury).
It is not just the levels of compensation that will have an adverse effect. The rise in the small claims limit for road accident victims to £5,000.00 means the loss of a right to recover legal costs. This means individuals will have to pursue their claims under the new rules without assistance or pay a high percentage of their compensation to claims management companies who will adopt the same approach they took to PPI (payment protection insurance) claims - be prepared for those cold calls!
We are concerned that the lack of legal representation could result in more significant injuries being overlooked, such as in the case of our client Nicola Cooper. Nicola suffered a brain injury after a seemingly minor car accident. There were no obvious immediate signs to show that she had suffered severe brain damage and at first her only symptoms were those of a whiplash-type injury. Her symptoms progressively became apparent and she has rebuilt her life with the help of her family, friends and Shoosmiths.
If you do use the DIY approach using the promised ‘publicly accessible’ Official Injury Claim Portal you will need to understand the definition of a ‘whiplash injury’ and the category of exempt persons/accident types. If you are in an exempt category the old rules apply so you get more compensation, and if the compensation is above the new small claims limit you also receive your legal costs.
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Road Traffic Accidents: inside the new regime |
Road Traffic Accidents: outside the new regime |
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Occupants of a motor vehicle who suffer ’whiplash type injuries’. A ’whiplash injury‘ is defined by the Act as: "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 a muscle, tendon or ligament in the neck, back or shoulder.”
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Motorcyclists |
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Cyclists |
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Children under the age of 18 |
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Protected parties |
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Pillion/sidecar passengers |
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Horse riders |
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Those using mobility scooters |
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Claims where the claimant is an undischarged bankrupt |
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Claims against foreign registered vehicles |
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Occupants of a motor vehicle with whiplash type injuries lasting longer than 2 years |
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Occupants of a motor vehicle with non-whiplash type injuries such as breaks and fractures |
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Accidents that occurred before 31 May 2021 |
Confusing? That’s the simple bit! What we don’t know yet is how applicants and the system will deal with multiple injuries or where there is more than one defendant to blame (e.g. multiple car shunts).
Under the new scheme the top tariff for pain and suffering lasting for 18 months but not more than 24 months is £4,215.00 (or £4,345.00 if at the same time you have a minor psychological injury), whereas those who still come under the existing old system then where a full recovery takes place within a period of one to two years the bracket is £4,080.00 to £7,410.00.
Of the new reforms, Paul Ashurst, personal injury expert in Shoosmiths’ Reading office says: “It will of course be argued that individuals with the assistance of ‘an accessible user guide’ will be able to understand all the issues and match the experience of the insurance claims handlers who will be making the decisions for the blameworthy defendants. In my view, trying to reduce complex issues to some form of ’flat pack furniture instructions’ is bound to put people off making claims, including those that don’t realise they fall outside the new scheme… perhaps that is the long term objective. To remove lower value claims from the court system under the guise of a quicker and more user friendly system that turns out to be rules-based, complicated to navigate and yields low levels of compensation is far from ‘what society as a whole would perceive as being reasonable.’
Disclaimer
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024
