Many of you have probably heard and probably even used, the word “whiplash”. In fact, there is even an award winning film of this name released in 2014. But do you know what it actually means? It isn’t a legal term, and it isn’t really a proper medical term, but on the NHS website Whiplash is defined as:
"A neck injury caused by sudden movement of the head. It usually gets better within 2 to 3 months."
The NHS website goes on to say that whiplash usually happens after a road traffic accident or following a slip or fall and describes some of the more common symptoms which include neck pain, neck stiffness and difficulty moving the head, headache and pain and shoulder spasms.
In November 2015 the then government announced sweeping changes to claims for such injuries following road traffic accidents, in direct response to insurers lobbying for the same and against the background of rising insurance premiums. The aim of such reforms was to bring down the cost of insurance premiums for the ordinary motorist.
Since that time there has been some progress towards bringing in the reforms, but the same have been delayed a number of times.
It was announced last month that the reforms would finally come into force in May 2021. No date has been given, but it is thought it will be 31 May 2021.
For anyone who suffers whiplash type injuries in a road traffic accident after that date, the way in which you can claim for injuries and the amount you will receive for those injuries, are going to be hugely different to how things operate now.
Currently such claims are submitted via an online portal, but the government, via the Motor Insurance Bureau (MIB), have been beavering away building a new online portal system, called “Official Injury Claim” portal or “OIC”.
All whiplash claims must be submitted through this new OIC portal by an injured individual themselves, and not their legal advisor. Indeed, there will be no legal fees available, so injured people are going to have to represent themselves. Even if the insurer of the third party involved in the accident denies liability, an injured person still has to go it alone and fight that insurer or their legal representative. David and Goliath?
The portal which is not yet complete has been built by developers at the MIB in conjunction with the Insurance Industry. It is meant to be user friendly and designed for consumers using it as a “litigant in person”, which is a legal industry definition for someone who doesn’t have legal representation (and is representing themselves) and from what we have seen so far, it does all seem fairly straightforward.
But then we are looking it through expert eyes, as legal professionals who have used the current portal for many years, and indeed other portals, such as the CICA online portal and the MIB portal for uninsured/untraced drivers and have vast experience of such portals. Valuable experience to have unlike an injured individual who does has no experience at all.
And of course, we know how insurers operate. We know their tactics and moves and how to react. Injured individuals representing themselves do not have this knowledge or expertise, and no doubt navigating their way through this portal, however “user-friendly” is undoubtedly going to be a very daunting task.
And what will they get should they make it through this portal, get an admission of liability, get a positive medical report that supports their injuries and reach the finish line? What will they collect when they pass this milestone?
Well individuals need to be prepared for how little their damages are likely to be, as also part of these new reforms is the introduction of a tariff of injuries, the minimum of which being £235 for a whiplash injury that lasts up to 3 months (under current law such an injury could attract an award up to a maximum of £2350, thus giving the reader an idea of how limited compensation payments are going to be under the new rules).
The highest award under the new tariff is £3910 for injuries that last 18-23 months.
If your whiplash injury sustained in a road traffic accident lasts more than 2 years, your claim should not be processed through this new portal, but it isn’t easy in the days or weeks following such an accident to know how long your injuries are going to last. Again, another conundrum for an injured consumer to have to navigate.
These tariffs are fixed amounts and not subject to negotiation. And as indicated above, all injuries still need to be supported by an independent medical report, all of which can be done via the new portal. But if the insurer denies liability, then the injured person will need to pay for this medical report themselves, at a cost of £180 plus VAT.
Another part of the reforms will see an increase to the minimum level of road traffic accident claims which can be started in the small claims court. Currently that limit is £1000 but this is going to rise to £5000 for road traffic claims. Claims worth less than that minimum amount (£5000) can still go to court and be processed and determined via the Small Claims Court track, but injured individuals will need once again, to represent themselves or pay for legal assistance. This cannot be recovered from the other side.
And a whiplash claim isn’t just about compensation for an injury, there are many facets to such claims, such as recovering insurer outlay, if you’ve had a credit hire vehicle getting the money back for that organisation, if you’ve had physiotherapy and reclaiming those costs. All these aspects of a claim, too tricky for an online portal, have been simply swept aside and are very likely to be overlooked by an injured consumer, who probably isn’t aware of the need to include these as part of their whiplash claim.
So it’s with some trepidation we await sight of the actual rules governing this new process, expected to be published within the next couple of weeks, and of course the fully functional portal, unlikely to be available until these reforms (enabled by the Civil Liability Act) actually go live on what we think will be 31 May 2021.
Until then, all we can do is support those injured in all types of claims, who suffer whiplash and much more, to the best of our ability.
If you have been injured in a road traffic accident then we have a specialist team who can guide you through this difficult time, working for you to ensure you get the best possible compensation you can. Please call on 0161 696 6235 should you wish to discuss a personal injury claim.