Can I claim for Whiplash? A guide to the latest rules
- AuthorLeanne Day
The Whiplash Injury Regulations 2021 (also known as the Whiplash Reforms) came into force on 31st May 2021 and apply to those wishing to bring a whiplash claim as a result of a road traffic accident. There is now only a limited amount of compensation you can claim for whiplash injuries which last less than 2 years, and this also includes minor psychological injury. The rules expect Claimants to run the claim themselves via the Official Injury Claim (OIC) website without the help of a legal advisor. This is causing additional confusion and upset to many Claimants who have suffered needless injury because of negligence.
What is Whiplash?
'Whiplash' is defined in Part 1 of the Civil Liability Act 2018 as "an injury of soft tissue in the neck, back or shoulder." This includes 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.
Whiplash is considered by the Regulations only in terms of the time it takes to recover, and not the severity of the injuries. Therefore, there is no increase or decrease in compensation depending on whether someone has suffered severely for 2 years, or mildly for 2 years.
The Regulations account for minor psychological injury suffered on the same occasion as the whiplash – however, the word 'minor' isn't defined by the Regulations and this is causing difficulties for those in practice to determine whether a psychological injury falls within the scope of the 2021 Regulations or not. It is impossible at the outset to ascertain the full extent of the injuries suffered.
It is clear from the above that there are some difficulties for Claimants and practitioners arising from the Regulations.
What compensation am I entitled to for whiplash?
Section 2 of the Regulations includes a table/tariff which says that for whiplash claims lasting not more than 3 months, you will only be entitled to £240 for your injuries, or £260 if you have also suffered minor psychological injury. It then increases in stages all the way up to injuries lasting more than 18 months but not more than 24 months, with compensation figures of £4,215 for whiplash and £4,345 for whiplash and psychological injuries.
If other non-related injuries, or 'mixed injuries' are suffered, these are currently valued separately using common law principles such as considering the Judicial College Guidelines and previous case law. It is important that any medical experts distinguish between those injuries which are whiplash and non-whiplash related in their reports. The value of general damages taking into account all injuries is then calculated and discounted to avoid overcompensation. However, the final award cannot currently be less than the award for non-tariff injuries. Valuing a claim can therefore be complex.
Two years on…where are we now?
The Association of Personal Injury Lawyers ('APIL') have kept a close eye on the consequences of the Regulations since they came into force. APIL have reported that the number of whiplash claims brought now are at a lower level than during the height of the Covid-19 pandemic when travel was drastically reduced and people stayed at home. This is despite an increase in the number of injuries being reported. These statistics point to the fact that Claimants are being put off submitting claims and accessing justice. Insurance premiums have risen drastically and the benefit of the Regulations for injured victims is therefore being brought into question.
What are the complications of running a claim myself?
The Regulations and new process were supposedly implemented with the intention of being user friendly and easy to follow for Claimants acting in person, but from feedback I have received from clients, this is not the case. Difficulties arise in their case which can cause distress and confusion. Sometimes a claim appears straightforward at the outset, but then becomes complex if a recovery is not made in accordance with the prognosis period, or if further expert evidence is required. It may be that they under settle without a knowledge of how their claim should be valued. Some victims cannot face going through the process without legal help and simply do not bring a claim, which is supported by APIL's findings.
This is not in the best interest of Claimants who have suffered needless injury and the benefit of the Whiplash Reforms for anyone other than insurers is yet to be seen.
If you have had an accident and aren't sure how to bring a claim, please call 01205 315 308 for a friendly chat. We are on hand to assess your claim and advise whether we can get involved on your behalf from the start. Alternatively, if you have started a claim in the OIC portal and feel it should no longer continue in this process based on value or complexity, we can assess whether we can take over and run the case for you.