What are the Whiplash Reforms?
The Whiplash Reforms were first proposed in 2015 with the intention to reduce the costs paid out by Insurers in relation to Road Traffic Accident claims. In turn, reducing insurance premiums paid by road users.
As a result of the reforms, new legislation and protocols have been introduced.
The small claims track limit has also been increased to £5,000.00 (from £1,000.00) in relation to road traffic accidents. This means legal costs cannot be recovered from defendants for claims of personal injury under this sum.
The new rules came into effect on 31 May 2021. They will only apply to road traffic accidents that occur on or after this date.
If a person is involved in an accident before this date, the usual rules apply, even if a claim is not brought until after 31 May 2021.
What is "The Protocol"?
The Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (“the Protocol”) applies where a person has suffered personal injuries (including whiplash injuries) because of a road traffic accident where the amount claimed for their injury is not more than £5,000.00.
What is a Whiplash injury?
The Protocol defines a whiplash injury as an injury of soft issue in the neck, back or shoulder suffered because of driver negligence. The duration of the whiplash injury or injuries does not exceed 2 years. Or would not have exceeded 2 years if it was not for the claimant’s failure to take reasonable steps to mitigate its effect.
When does The Protocol not apply?
The Protocol does not apply in the following circumstances:
- Where the claimant is under the age of 18
- Where the claimant is a protected party (those who lack the capacity to conduct the claim)
- Where the claimant was a vulnerable road user. This includes motorcyclists, pillion passengers, passengers in a sidecar, those using a wheelchair or mobility scooter, cyclists, those riding a horse or pedestrians.
- If general damages are valued at more than £5,000.00, or where the claim is valued at more than £10,000.00 in total including other losses
- When a claim contains complex issues of fact or law
- If there are allegations that a claimant is being fraudulent or fundamentally dishonesty
- Where the defendant driver’s insurer (known as the compensator) disputes that the accident caused the claimant any injury following disclosure of the medical report
- Where the Defendant cannot be traced
- Where the Claimant or Defendant is deceased
Making a Claim through The Portal
The claimant is required to complete an online Small Claim Notification Form (SCNF) which sets out details of their claim.
Claims for damages other than the injury, known as ‘other protocol damages’ (such as treatment costs, loss of earnings, damages to property and vehicle damage), must be made through the Portal and when the SCNF is submitted to the Portal.
If the claimant incurs ‘non-protocol damages’ – costs that have been paid or for which credit is given through a third-party organisation (such as credit hire or vehicle storage) these should be included within the SCNF. However, they are not compensated under the Portal. Additionally, they are not taken into account when considering whether the Portal claim value remains within or exceeds the claim limit of £5,000.00 in relation to general damages or £10,000.00 in total including other protocol damages.
When completing the SCNF, the claimant can provide details of any medical treatment that has been recommended, for example, physiotherapy. The compensator then considers whether they wish to arrange or fund the recommended treatment.
Once the SCNF has been submitted, the Portal will search the Motor Insurance Database to locate the relevant compensator and forward the SCNF to them.
If no compensator is identified the claim can be dealt with by the Motor Insurers’ Bureau (MIB) under the uninsured drivers’ agreement.
The compensator must provide a liability response within 30 working days from the date the claim is accepted on the Portal.
If the claim is being dealt with by the MIB, a liability response must be received within 40 working days. If no response is received within these periods, liability will be taken as being admitted in full.
The compensator is able to provide a number of liability responses, as follows:
Receiving Interim Payments for Whiplash Injury
Where liability has been admitted, or the court has found the defendant to be liable for the accident, the claimant can request an interim payment in relation to other protocol damages.
Where the defendant disputes the sum claimed or fails to agree to pay the sum requested, the claimant can start court proceeding to request an interim payment.
Obtaining Evidence to support injuries
Where liability has been admitted in some form, or a court finds the defendant liable for the accident, the claimant must then obtain medical evidence detailing the injury suffered. This can be done during any contributory negligence negotiations.
A claimant who has suffered a whiplash injury will be required to obtain a fixed cost medical report from an independent medical expert (who they have not been treated by) via an organisation called MedCo.
Where a claimant has not suffered a whiplash injury, a report should still be obtained via Medco, however, unlike whiplash injuries, it is not a requirement to obtain a medical report before any offers are requested.
A claimant may contact the compensator via the Portal messaging service to request an offer for their injuries. However, compensators may not wish to make any offers without medical evidence.
The instruction to a medical expert will be arranged via the Portal.
The claimant can choose where they want the examination to take place along with confirming other requirements. For example, whether they wish for the expert to be a certain gender or to meet accessibility needs.
Obtaining a further medical report can only be justified in the following circumstances:
- where it is recommended by the first expert (for example a referral to a different type of expert)
- when further time is required before a prognosis of the claimant’s injuries can be provided
- when the claimant is receiving ongoing treatment
- if the claimant has not recovered as advised in the first report.
If a further report is required, the request should be sent to the compensator to consider. It should outline the reasons why a second report is required.
The claimant can challenge the factual accuracy of the report with the medical expert up until the point it is disclosed to the Defendant. At that point, the report is deemed to be accepted as accurate and complete.
How much compensation?
The amount of compensation recoverable for whiplash injuries is restricted by a tariff, as detailed below.
If a person suffers one or more whiplash injuries, they will receive the relevant amount under the whiplash only column.
If the person suffers one or more whiplash injuries along with one or more minor psychological injuries, they will receive the relevant amount under the second column.
The duration of injury is the actual period a person has suffered if they have already recovered from their injury, or the likely duration they will suffer. The medical expert provides their opinion in relation to this within their medical report.
On the occasions where more than one injury is suffered, the duration is taken from the injury they suffered for a longer period.
The courts are able to uplift any award under the tariff by up to 20%, but only in exceptional circumstances. The Court will need to be satisfied that the pain, suffering or loss of amenity experienced by a person is ‘exceptionally severe’. Or the person has some exceptional circumstance that increases the pain, suffering or loss of amenity experienced.
There is currently no guidance as to what may be considered ‘exceptional’.
Non-whiplash injuries are valued by using the Judicial College Guidelines. Each section provides guidance in relation to different injuries. For example, knee injuries or toe injuries.
Further breakdowns are provided in each section as to the level of the award which may be expected for the injury suffered. This usually takes into consideration the duration and impact of the injury. Detailed paragraphs are included to assist in deciding which award bracket may be relevant.
The guidelines are included within the Guide to Making a Claim
Going through Settlement Negotiations
When the claimant is ready to negotiate settlement of their claim, they must confirm this on the Portal. Any medical reports not already provided to the compensator must be sent.
If other protocol damages or fees (such as medical report fees) are being claimed, then these must be included within the ‘List of Losses’ on the Portal.
No further losses can be submitted at a later date.
For whiplash injuries, if the claimant wishes to seek an uplift in their damages, they must do the following:
- advise how their whiplash injury was exceptionally severe or;
- advise how their specific circumstances have had an impact on their pain, suffering and loss of amenity and how they consider the circumstances to be exceptionally severe
- provide confirmation that their medical evidence supports this
- state the uplift sought (up to 20% of the relevant tariff amount).
The compensator must then make an offer to settle the claim within 20 working days.
The offer will set out any fixed tariff amount for whiplash injuries, offers for non-whiplash injuries and the offer for other ‘protocol losses’.
The offer must also set out any deductions in relation to contributory negligence or mitigation.
If at this stage the compensator disputes that the accident caused any injury, they must inform the claimant within 20 working days. If no offer is made here, or an offer is made which the claimant does not accept, the matter will no longer be dealt with under the new Protocol. In these cases, legal advice should be sought.
Following receipt of an offer, the claimant will then have the following options:
- Accept the offer – the compensator must pay damages within 10 working days (this also applies where the compensator accepts the claimant’s counteroffer)
- Make a counteroffer – counteroffers should be made within 10 working days. Both parties can make 3 counters offers. Any offer can be removed after 10 working days.
- Put the offer on hold – this may be to wait out any prognosis periods. The claimant can then accept or reject the offer at a later date or make a counteroffer. If recovery has not been achieved as expected, then a further report would be required.
- Start Court proceedings
If the claimant settles, then the payment method will be agreed between the parties.
If no settlement is reached, then the claimant can start court proceedings for the Court. They will decide the amount of damages to be awarded.
Unlike the Portal, any non-protocol losses, such as hire cars and vehicle storage, must be included.
Time limits on making a claim
A claimant must bring a claim for compensation within 3 years from the date of the accident. After this time, the claimant will become statute-barred. This means they are no longer entitled to compensation.
If a claim is not settled within the limitation period, then the claimant must issue court proceedings to ensure they do not become statute-barred. The Portal will provide warnings on the approach to the end of the 3 year limitation period.
Further and more detailed guidance on each step can be found on the Official Injury Claim website.