In the midst of all the coronavirus news, many may have missed the fact that the Government have announced that the Whiplash Reforms which were due to be implemented in August this year have been postponed to April 2021.
Robert Buckland (The Lord Chancellor and Secretary of State for Justice) stated “it is apparent that the current Covid-19 pandemic has had an unprecedented impact on the medical, legal and insurance sectors. While the whiplash reform measures remain important, the Government is committed to acting to ease the disruption and pressures caused by the Covid-19 outbreak where it can.
As a result…now is not the time to press ahead with significant transformational change to the personal injury sector.
We have therefore decided to delay the implementation of the whiplash reform programme to April 2021…”
What are the Whiplash Reforms?
‘Whiplash reforms’ is the commonly used term for the package of measures the Government intends to introduce to change the way low-value personal injury claims arising from Road Traffic Accidents (RTA) are managed.
The Government says that the following measures are intended to control the number and cost of whiplash claims i.e. ‘to cut car insurance premiums’: –
- An increase to the small claims track limit for road traffic accident related personal injury claims from £1,000 to £5,000.
- An increase to the small claims track limit for all other personal injury claims from £1,000 to £2,000.
- The introduction of a fixed tariff of damages for pain, suffering and loss of amenity for whiplash injuries.
- A ban on making or accepting offers to settle a whiplash claim without a medical report.
Increase to small claims track limit
By moving claims with a value up to £5,000 to the small claims track the injured person cannot recover their costs from the wrongdoer, even if they are successful. Therefore, injured people will be expected to bring their own claim without using a legal representative, or sacrifice part of their compensation to pay for legal advice.
I believe that this creates an ‘inequality of arms’ as the insurance company will have unlimited resources at their disposal. Faced with this, some injured people may decide not to claim at all. Along with many others who work for claimants, I believe that this is an assault on their rights.
Fixed Tariff of Damages
At present, compensation payments are set in brackets for different types of injury. This allows Judges to take individual circumstances into consideration, including any impact on everyday life and work.
The Association of Personal Injury Lawyers (APIL), of which I am an accredited member, argues that the introduction of a fixed tariff of damages “…will inevitably lead to under-compensation in many circumstances. Tariffs are appropriate for mobile phone contracts and taxi fares, not injured people… In most cases where the symptoms last up to three months, the Government’s proposed compensation of £235 will not be anywhere near an appropriate level of compensation. A train passenger can receive £493 if his train from London to Glasgow is delayed by two hours.”
Ban on offers without a medical report
This is one thing I do welcome from the whiplash reforms. It is impossible for me to advise injured people on the value of their claim before a medical expert has assessed them and provided a report. Without a medical report, injuries could be missed and claims under-settled. Present circumstances have shown that whilst not ideal, it is even possible for medical assessments to take place by video, in some cases!
The Government has promised lower car insurance premiums for years. A series of personal injury reforms have already been implemented to achieve this aim and failed. This is despite the number and cost of whiplash claims falling year on year already. The only thing these measures will do is excuse car insurance companies from paying full compensation to people injured through no fault of their own.
This announcement, whilst welcome, is at present only a delay, and I am sure that the government still intends to press ahead with these reforms in the future. Implementation had already been delayed, as the technology had not been developed, nor the rules been written, to enable individuals to make their own claims. There were, and still are, many unanswered questions as to how this system can work. Along with many others from APIL and also the Motor Accident Solicitors Society (MASS), I hope that this postponement will allow further time for the scheme, if it must come in, to be properly developed so that it is accessible and works in the interests of injured people, not against them.