Following numerous delays, the publication of the necessary rules and regulations has heralded confirmation that the whiplash reforms will be implemented on 31 May 2020.
The regulations issued confirm the details of the whiplash tariff amount, and the prohibition of pre-medical offers of settlement as set out within the Civil Liability Act.
The publication of the details of the whiplash tariffs has not lessened concerns that there may be a rise in ‘tariff plus’ injuries seeking to push the value of whiplash injury claims past the small claims track limit of £5,000 in order to make claims cost-bearing. The addition of a staged award for minor psychological injuries and the lack of clarity currently in respect of the interplay between tariff and non-tariff injuries raise further questions on this front. These concerns will only be alleviated by appropriate case law on these issues.
These Regulations allow the Lord Chancellor to make regulations setting the tariffs for whiplash injuries and also the prohibition of pre-medical offers in whiplash claims as set out below.
The Whiplash Injury Regulations 2021 set out the tariffs to be applied to whiplash injuries up to 24 months. In addition, the Regulations provide that where the claimant has suffered a minor psychological injury, then an additional amount of compensation will be added to the whiplash tariff amount. The amount for the psychological injury will be dependent on the duration of the injury too.
The Regulations confirm that the tariffs will only apply those claims where the causes of action (the road traffic accident) accrues on or after 31 May 2021.
The tariffs are as follows:
The Regulations confirm that an uplift to the tariff may be applied in exceptional circumstances by a Court where the degree of PSLA makes it appropriate to use the greater amount and the whiplash injury was exceptionally severe or where the person’s circumstances are exceptional and cause an increase in PSLA.
The uplift can be applied to whiplash-only injuries, whiplash and minor psychological injuries, and the whiplash element of a claim where the claimant sustained other injuries too. The Regulations confirm that the uplift amount cannot exceed the tariff amount by more than 20%.
Restrictions on pre-medical offers
The Regulations also specify the medical evidence that must be provided before a regulated person (defined in section 9 of the Civil Liability Act 2018) can offer payment to settle, or make or accept a payment in settlement of, an RTA related whiplash injury claim.
For claimants in England and Wales, the medical evidence can be a fixed cost medical report obtained via MedCo or a medical report obtained via a doctor listed on the GMC where the doctor was examining the claimant in respect of another more serious injury sustained in the same accident.
The Civil Procedure (Amendment No. 2) Rules 2021 provide the additional detail of the necessary changes to update the Civil Procedure Rules. These Rules also clarify (under new rule 26.6A) that the current £1,000 small claims track limit for personal injury claims arising from an RTA will be preserved where the accident occurs before 31st May 2021.