Civil Liability Bill update - Whiplash Injury Regulations

Last week we saw the release of the Whiplash Injury Regulations, providing further insight into the detail of the Civil Liability Bill.

Introduction

In our previous update we looked at the content of the Civil Liability Bill which began the process of introducing a fixed damages tariff for whiplash claims and a ban on settlement of whiplash claims without the benefit of medical evidence. Last week we saw the release of the Whiplash Injury Regulations (“the Regulations”) which gives further insight into the detail of those reforms.

Key components

The Regulations provide clarification on;

  •  The definition to be used for whiplash for the purposes of the fixed cost tariff;
  • The tariff to be applied to whiplash claims;
  • The limits of judicial discretion to increase from the tariff awards; and
  • The role of MedCo in the acquisition of medical evidence.

Definition of whiplash injury

We have seen a number of attempts to define whiplash over the years, specifically in connection with the introduction of the portal, MedCo and the various predecessors to the Civil Liability Bill. These Regulations define whiplash as:

“a sprain, strain, tear or rupture of one or more of the muscles, tendons or ligaments in the neck or back which has been caused by the backward or forward or sideways movement of the neck beyond the limit of its normal range of motion, the effects of which may include, but are not limited to—

  1. Pain in the neck, back, shoulders or arms;
  2. Reduced mobility in the neck, back or shoulders;
  3. Headaches;
  4. Muscle spasms; or
  5. Swelling in the neck.”

The definition contained within these Regulations appears to be a good attempt at defining the injury as a whole and extends the definition from previous attempts to include injuries to the back, shoulders and arms as well as neurological symptoms. This definition ought to encompass the majority of whiplash injuries, reducing the opportunities for claimants to game the system and drop claims out of the fixed tariff system.

The tariff

The Regulations also set out the tariff to be introduced. This is nothing that we have not really seen before. We have set out below the tariff alongside industry data previously used as a comparator by the Ministry of Justice in the context of its 17 November 2016 consultation. The tariff applies to whiplash injuries including one or more minor psychological injuries.

Injury Duration (months) 2015 average payment for PSLA (industry data) (£) Judicial College Guidelines (13th edition) (£) New Tariff Amounts (£) Saving (£)
0-3 1,750 Up to 2,050 225 1,525 - 1,825
3-6 2,150 2,050 - 3,630 450 1,700 - 3,180
6-9 2,600 2,050 - 3,630 765 1,835 - 2,865
9-12 3,100 2,050 - 3,630 1,190 1,910 - 2,440
12-15 3,500 3,630 - 6,600 1,820 1,680 - 4,780
15-19 3,950 3,630 - 6,600 2,660 1,290 - 3,940
19-24 4,500 3,630 - 6,600 3,725 775 - 2,875

Clearly the new tariff will give rise to a significant saving for compensators on the sums currently paid out in whiplash claims. Coupled with the proposed increase to the small claims track - which will reduce the costs payable in the majority of the claims to which the tariff applies and potentially also the number of claims made - this perhaps represents the most significant development yet in the bid to arrest the spiraling cost of whiplash claims and its impact on the premiums payable by consumers.

In addition, the tariff creates a certainly around compensation for pain, suffering and loss of amenity that has never been seen before in injury claims. It will allow injured litigants to much more readily understand the value of their own claims, giving them real choice as to whether or not they actually need to incur the cost of engaging a legal representative.

The uplift

The Regulations provide the court with the power to apply an uplift on the tariff in exceptional circumstances. There are 2 specific scenarios used to define what amounts to exceptional circumstances. They are as follows:

  1. The degree of pain, suffering and loss of amenity arising out of a whiplash injury makes an increased award appropriate and the circumstances giving rise to that injury are exceptional.  
  2. The court is called upon to make an award in relation to an injury covered by the tariff in conjunction with another injury.

The maximum uplift available is 20% of the applicable tariff.

The wording around these uplift provisions is not particularly clear. It is possible to interpret scenario b as limiting the totality of the award for pain, suffering and loss of amenity for the whiplash and other injury to a maximum of the tariff injury value with a 20% uplift. That, in turn, perhaps gives rise to the possibility of satellite litigation. However, we would be surprised if the court would countenance such an interpretation. Certainly that would drive an unjust outcome in cases where a whiplash injury is secondary to another more serious injury or injuries, such as an amputation for example. 

The role of MedCo

The final element of the Regulations makes it clear that a whiplash claim cannot be settled without a fixed cost medical report obtained through MedCo. It reiterates that any other report will not be acceptable as evidence of injury.

However, once again the wording appears ambiguous in relation to scenarios when whiplash injuries come to be considered alongside other injuries of a more serious nature.

Comments

The Civil Liability Bill is still at an early stage in its progress through the legislative process and is not without its detractors. The publication of these Regulations might perhaps be aimed at delivering clarification of the intentions behind the Bill and how it is anticipated to work in practice. It would also seem to indicate that the government remains focused on delivering reform in this sector.

Undoubtedly compensators stand to benefit significantly if the Regulations come to pass in their current form. However, it does seem to us that there is room for some amendment to the wording of some of the Regulations, if only to mitigate the potential for satellite litigation.

Can we help?

We will continue to liaise with Government over further developments and as the Civil Liability Bill continues its progress through Parliament, and more detail emerges, we will provide updates with a view to assisting compensators in their preparation for these reforms.

In the meantime, should you wish to discuss this in more detail, or would like assistance with any other matter, please do not hesitate to get in touch.

  • David Johnson (Partner, Political Affairs, 0207 822 7146)
  • Bavita Rai (Partner, Innovation & Client Affairs, 0121 200 3499)
  • Doug Keir (Partner, Scottish Affairs, 0141 375 0869)
  • Kurt Rowe (Associate, Market Affairs, 0207 822 7132)

 

Share on Twitter