Changes to personal injury law
The government is pursuing a package of measures that will make it more difficult for injured people to use the services of solicitors.
These changes can be summarised as follows:
- Increasing the small claims limit for personal injury claims in road traffic accidents from £1,000 to £5,000.
- Increasing the small claims limit for low value personal injury claims in employment liability cases from £1,000 to £2,000.
- Providing a legal definition of what constitutes a whiplash injury.
- A tariff of fixed compensation for whiplash injuries of up to two years.
- A ban on offering to settle, or settling whiplash claims without medical evidence.
The stated aims of the changes are to simplify the claims process, reduce the number and cost of whiplash claims, and pass on savings to drivers across England and Wales.
Road traffic accidents: the small claims limit increase
Solicitors often pursue personal injury claims on a “no win, no fee” agreement – if your claim is successful many will opt to take a success fee from any damages awarded and the Defendant is liable to pay your solicitors costs for dealing with the claim.
However, costs are only recoverable if the value of the claim exceeds the small claims limit, which by 6 April 2020 is expected to rise to £5,000. This is expected to remove solicitors entirely from the claims process for the vast majority of road traffic accident claims. Claimants will have to choose between navigating the claims process themselves or using claims management companies that are not subject to the same stringent regulation as solicitors. Claims will be processed using a new online portal, though the workings of that portal are still shadowed with uncertainty.
What is a whiplash injury?
Until now there has been no legal definition of a whiplash injury. Under the Civil Liability Act 2018, a whiplash injury is defined as “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”.
Insurers routinely make ‘pre-medical offers’ to claimants in an attempt to settle their claim without the need for medical evidence. This is often done on a commercial basis in order to limit how much compensation they could potentially pay out.
Under the Civil Liability Act 2018, pre-medical offers for whiplash claims are banned and all claims involving whiplash will require medical evidence to support the injuries as claimed.
Personal injury claims are valued by reference to previously-decided cases and the Judicial College Guidelines, which are themselves a distillation of thousands of previously-decided cases.
However, under the Civil Liability Act 2018, all road traffic accident claims, whiplash injuries lasting for up to 24 months will now attract a fixed tariff. We compare below the tariffs with the existing compensation:
|Duration of Injury||New Tarrif Compensation||Current Average Compensation|
As is evident from the above table, compensation for whiplash associated claims in road traffic accidents will be drastically reduced. The government says that the savings achieved by insurers will be passed on to drivers in the form of lower insurance premiums – it remains to be seen whether that aim will be realised.