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Seismic whiplash reforms could leave claimants helpless

19th March 2021

Seismic whiplash reforms could leave claimants helpless

Road traffic victims will see significant reductions in the compensation they are entitled to recover under the ‘Whiplash Reforms’ when they are introduced this summer - and no longer be entitled to receive legal support.

That’s the warning from the Higgs & Sons Personal Injury team ahead of new laws set to be introduced increasing the small claims limit for personal injury from £1,000 to £5,000.

The change applies to any accident occurring after May 31 which results in whiplash injuries or minor psychological injuries with symptoms lasting up to two years.

Currently, a claimant is able to recover the legal costs they incur in pursuing a claim for compensation provided the value awarded for the injury element of their claim exceeds £1,000.  Under the new proposals, the right to recover the costs of receiving legal assistance will be removed.

Laura Hopkins, Chartered Legal Executive at Higgs & Sons, said: “We have major concerns about these new regulations and consider the plans to increase the limit to £5,000 an erosion of access to justice.

“We are going to see many whiplash cases fall below the small claims limit and it will mean a claimant, fresh from having suffered an injury, is left to represent themselves in fighting an experienced and well-funded insurance company without any entitlement to seek advice or recover their legal costs.

“There is a real danger that claimants will miss out on getting the correct support and advice and, as a consequence, not receive the appropriate level of compensation for their pain, suffering and loss of amenity.  Furthermore, they will be left in a position where they have to arrange their own medical examination and quantify their own losses.”

As part of the reforms – which apply to car accidents where a soft tissue or whiplash injury was suffered and lasted less than two years, with limited exemptions - a new self-service online portal system will be introduced allowing claims to be pursued directly with insurers.

The most significant element of the reforms is the introduction of a tariff system which prescribes the amount an injured person will receive based on the prognosis period provided by a medical expert. There is a significant reduction in the amount that will be awarded compared to historic levels. 

Certain cases are excluded from the new process including those who fall into the vulnerable users category. Those include motorcyclists, pillion/sidecar passengers, cyclists, pedestrians, horse riders and those using mobility scooters.

An uplift of 20 per cent can be applied when the injury is deemed exceptionally severe or where circumstances seen as exceptional have increased the pain suffering and loss of amenity caused by the injuries but it is highly unlikely that the court will routinely find that the definition of exceptionally severe applies.

Laura added: “The new tariffs are likely to mean any compensation will be at a significantly lower level than previously would have been awarded.  The same rules do not apply to vulnerable road users.  What that means is that an injured child travelling in the same car as his or her parent is likely to be awarded a significantly higher level of compensation for comparable injuries in terms of duration.

“In addition, the introduction of self service  online portal means not only that the injured person will receive less in compensation but they are going to have to navigate the system themselves with no support.  Furthermore, the very introduction of a self service online portal prejudices against any claimant who does not have access to the right IT equipment to initially make a claim on the portal.

“The claimant faced with a difficult insurer opponent will also not have access to the same resources that solicitors do.

“Taken in the whole, our view is that the changes are likely to deter genuinely injured people from making a claim because the system is too complicated and the compensation on offer is insufficient.”

 

 

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