Whiplash reforms - how much compensation will I get for my personal injury claim?

You may or may not have heard that the government is making changes to the claims process for low value road traffic accident (RTA) claims, commonly referred to as ‘whiplash claims’, which will take effect from 31 May 2021 onwards.

Not only will this change the way that claims are made but will also reduce the amount of compensation that is recoverable following certain (but not all) road traffic accidents, and the ability to recover legal costs from the at fault insurer.

Will my claim be affected?

It is important to understand whether or not your claim will be affected by the whiplash reforms as this will impact the way your claim will be dealt with. Your claim will be dealt with under the new process if:

• You are aged 18 or over
• The accident was caused by another road user
• The accident happened in England or Wales
• The third party vehicle is registered in England or Wales
• The accident happened on or after the 31st May 2021
• You were inside a vehicle (such as in a car or on a bus)
• You suffered minor injuries

What compensation will I be entitled to?

If you have been injured whilst inside a vehicle, the next question to ask will be whether you have suffered whiplash or non-whiplash injuries (or both).

The definition of a whiplash injury is "an injury of soft tissue in the neck, back or shoulder that is… 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". This definition is wide ranging, and it is important to note that it is this legal definition that will be used to assess your injuries.

Based on the new tariffs, any such compensation received for whiplash symptoms lasting up to two years will be fixed, as shown in the table below. The column on the left is for whiplash injuries only, whereas the column on the right includes minor psychological symptoms, such as travel anxiety, too.

There is the possibility of an increased award in ‘exceptional circumstances’ but this will be limited to 20% of the fixed sums. There is currently no definition of what “exceptional circumstances” would be, so no doubt that will be something difficult to prove and justify.

What about my other injuries?

If you have suffered any other physical injuries whilst inside a vehicle, which fall outside the definition for a whiplash injury, these will be referred to as non-whiplash injuries.

Non-whiplash injuries will be valued in the same way that they would have been valued prior to the introduction of the Whiplash reforms, by using the Judicial College Guidelines, also referred to as the JC Guidelines. These guidelines can be more complicated to understand as they cover all types of injuries and recovery periods and tend to have brackets of compensation rather than a fixed figure for each.

Can I claim out of pocket expenses?

As well as compensation for personal injury, there are often many financial losses which arise out of road traffic accidents, such as loss of earnings, damaged items, private treatment costs and other out of pocket expenses. These can also be claimed under the new process, so it is important to always keep receipts and invoices to prove your claim.

Why can’t I recover my legal costs from the at fault insurer?

If your claim meets the above criteria, not only will compensation for whiplash injuries be lower, but the court ‘small claims limit’ will be increased from £1,000 to £5,000. This means that, whereas before you would be able to recover legal costs if your claim was worth at least £1,000, now the injury element of your claim will need to be worth £5,000 (or your total claim value £10,000) in order for legal costs to be recoverable.

Due to these changes, you will have the option to make a claim yourself through a new online 'portal' called Official Injury Claim. This would mean that you would be unrepresented and would bring the claim yourself without the help of a solicitor. This is referred to as being a ‘litigant in person’.  Alternatively, you can still choose to instruct a Solicitor to represent you, however your legal costs will likely need to be deducted from your compensation.

There are some types of claims which are exempt from this increase to the small claims track limit. In the following types of claims, the limit will remain at £1,000 (but your whiplash injuries will still be subject to fixed tariff compensation) :

• Claims brought by children under the age of 18 years (at the time of bringing the claim)
• Claims brought by protected parties (those who lack legal capacity)
• Claims involving deceased parties
• Claims brought by a bankrupt claimant
• Accidents involving vehicles registered outside the UK

What are the other exclusions?

The good news is that these changes, both in relation to the fixed compensation awards and the small claims limit, only apply to claims brought by occupants of motor vehicles. They do not apply to vulnerable road users, such as:

• Pedestrians
• Cyclists
• Motorcyclists
• Scooter riders
• Horse riders
• Those using mobility scooters

The difficulty for many injured persons (claimants) will be trying to work out what their injury claim might be worth. This is particularly difficult soon after an accident, as the value of a claim will always depend upon the severity of symptoms and how long they last. Not only will unrepresented claimant’s need to consider the new tariff, but also the existing guidelines which apply to non-whiplash injuries.

Here at Stephensons we understand how daunting the claims process can be and we are committed to representing our injured clients to ensure they recover the level of compensation they deserve. If you have been injured in a road traffic accident, whether it be before or after 31st May 2021, call us on 0161 696 6235 to see how we can help.