Kate Archer and Peter Newstead look at the implications of the UK whiplash reforms
The UK government’s whiplash reforms came into effect on 31 May, applying to road traffic accidents (RTA) occurring on/after this date. A ‘whiplash injury’ has now been defined for the first time in legislation and will be valued by reference to a tariff set by statute. The small claims limit for personal injury following an RTA has been increased to £5,000.
The new RTA small claims limit catches claims in which the value of the injury does not exceed £5,000 and the total claim value does not exceed £10,000.
There are exceptions to the new £5,000 limit: children and others who lack legal capacity; vulnerable road users (motor cyclists and pillion/sidecar passengers, cyclists, pedestrians, horse riders, mobility scooter users); as well as accidents where the claimant is an undischarged bankrupt; where either party is deceased; or where the defendant was driving a foreign-registered vehicle.
Claims that fall within the new RTA small claims limit must be submitted via the Official Injury Claim Portal, which has been designed to be readily accessible by claimants without the need for legal representation.
Following receipt, the compensator has 30 working days to provide a response on liability. That must normally be supported by the defendant’s version of events with a signed statement of truth, together with any supporting documentation or information such as dashcam footage, tachograph data, etc. If no response is provided within the time limit, the defendant will be deemed to have admitted liability; the claim does not drop out (as is the case in the RTA Portal) and the claimant may proceed to obtain medical evidence.
A key aspect concerns the valuation of whiplash injuries, which will be in accordance with one of two published tariffs; one includes minor psychological injuries as well as whiplash, while the other covers whiplash only.
The whiplash-only tariff ranges from £240 for an injury lasting no more than three months to £4,215 for between 18 and 24 months.
The tariff for whiplash and minor psychological injuries is slightly higher, ranging from £260 to £4,345. The tariff is subject to a potential uplift of 20% for ‘exceptional circumstances’. This term is not defined in the legislation but will carry its ordinary meaning: it is expected that compensators will rarely offer it and courts will rarely allow it.
If either party contends that the claim is valued in excess of £5,000 for the injury element and/or £10,000 for total claim value, there is a mechanism to remove the claim from the portal. Claims where the compensator makes an allegation of fraud or flags the claim as being one that involves complex issues of fact or law, will also be removed.
Key to managing this new process will be securing a quick turnaround in the reporting of accidents and submitting evidence, including witness statements to meet the 30-day deadline. Confidence in liability decisions made, together with proofing the defendant and any witnesses and expeditious review of documentation, will be vital.
The reforms represent a positive solution for claimants and compensators alike. They will enable genuine claimants to obtain due compensation quickly and efficiently, while ensuring that the amount payable by compensators is proportionate to the true pain and suffering.
Kate Archer is a partner and head of motor injury, and Peter Newstead is an associate, at law firm DAC Beachcroft