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  • Writer's pictureRichard Moon

Damages For Whiplash Set To Be Whipslashed

Long awaited government reforms to compensation claims for road accidents are set to come in from the end of May.

The changes, which have been in the pipeline for a couple of years, make significant cuts to compensation for whiplash, as well as making claimants pay their own legal costs in many road accident cases.

The biggest change is to damages for whiplash. Whiplash is a common injury suffered in many kinds of accident, but particularly road accidents, where the muscles and ligaments around the neck and back are strained, causing pain that typically affects the neck, back or shoulders. Although not a serious injury in itself, it can be exceptionally painful and sufferers have to put up with it almost constantly. Whereas with a leg injury or an arm injury, beyond the initial painful days after the injury you can get relief by taking the weight off your leg, or resting your arm, there is little someone with whiplash can do to take the pain away.

Under the new law, for people with whiplash caused by a road accident from 31 May 2021, damages for whiplash lasting up to three months will get £240, for a year's injury it is £1,320, and for 18 months it is £3,005. Under the existing law, where damages are awarded by judges, typical damages are about £2,000, £3,500 and £5,500 respectively.

These changes are not without controversy. Clearly they have been welcomed by insurance companies, who pay whiplash claims. They have lobbied the government for years for these changes which they say will reduce fraudulent injury claims and the nation's 'compensation culture' - although there is little evidence any such thing exists.

But this law marks a first, in that it fixes compensation for a widely-suffered injury by legislation, not according to a judge's assessment of the severity of the injury. The level is fixed much lower than would normally be the case. Imagine you are the passenger in a car that is involved in a crash. You suffer a whiplash that lasts a year, and the driver strains their wrist on the steering wheel, an injury which also takes a year to get better. The driver gets their damages assessed by the judge and gets £3,000; you, with a year of fairly miserable neck pain, get only £1,320, fixed by law.

It can also be hard to define whiplash. Sometimes it it obvious, but the law has to give a definition of what is and what isn't covered by the new rules, and broadly whiplash is defined as muscular, ligamentous or other soft tissue injury to the neck, shoulder or back. So what about a slipped disc? What about an injury to the rotator cuff in the shoulder? Both are damage to soft tissues, they are to the spine or the shoulder, but they wouldn't normally be considered whiplash. Are they subject to the reduced damages regime?

The issues are further magnified when one considers the other limb of the reforms, that for road accidents from 31 May 2021, legal costs can't be claimed where the damages are below £5,000. That is problematic in itself. If someone crashes their car into you and you suffer an injury and maybe lose money through being off work, or paying for physiotherapy, isn't it only fair that the driver at fault pays for what they have done, including any legal costs if their insurance company decides to resist the claim?

But even if you think it is fair for the injured party to pay their own legal costs, with a normal damages claim there is usually enough money from the damages to pay for the solicitor. But if the damages for whiplash are now so much lower, where is the money to pay for the legal costs? Or to put it another way, what solicitor is going to run a case - possibly all the way to court - for a percentage share of £240?

To some extent, this is the point. The aim is to make injured people try to fight claims by themselves without solicitors, relying on the insurance companies defending the case to deal with them fairly. In fairness, insurance companies aren't bandits; they have a code of conduct and won't ignore the law. However, they don't owe injured people any duty to pay them their full, fair damages, and years of experience of opposing them in claims suggests that - putting it kindly - not all of the arguments they make are good ones. How a litigant in person is supposed to sort the good points from the bad is anyone's guess, and the likely result is that lots of injured people will just give up.

It is not bad news for all injured people. The reforms only apply to road accidents, and even then there are exceptions, for example for children, cyclists and motorcyclists. We are always happy to give advice on whether you have a good case, and how it can be funded in a reasonable way. Please feel free to contact us to discuss your claim.

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