EWJ 60 April 2025 web - Journal - Page 35
here: https://consult.justice.gov.uk/digital-communications/statutory-review-of-the-whiplash-tariff-cfe.
constitutes an exceptional circumstance, as this will
depend on individual circumstances.
8/. A Welsh language executive summary and question set will be made available at https://consult.justice.gov.uk/digital-communications/statutory-review-of
-the-whiplash-tariff-cfe.
16/. More serious whiplash injuries exceeding 2 years
in duration are not subject to the tariff and are still
issued in the same way as prior to the reforms.
17/. The CLA requires that the Lord Chancellor reviews the regulations made under section 3 (the
whiplash tariff) by no later than three years after implementation and lay a report in Parliament on the
review’s outcomes and recommendations. The Lord
Chancellor therefore has a duty to review the regulations no later than 31 May 2024, and every three years
thereafter.
9/. This Call for Evidence will last for 8 weeks and will
close on 2 April 2024.
Background
The Civil Liability Act 2018 reforms
10/. Whiplash injuries are soft tissue injuries, typically
affecting the neck and back. In May 2021, the Government implemented its Whiplash Reform Programme, which introduced secondary legislation that
changed the way claimants are awarded damages for
low value whiplash injuries. At the same time, the Official Injury Claim[footnote 1] (OIC) portal, an online
service for bringing, negotiating and settling low value
RTA-related personal injury claims, was launched to
assist claimants affected by the reforms.
18/. The Government committed, during the passage
of the Whiplash Regulations 2021, to assessing the feasibility of an early review one year after implementation. An assessment was undertaken of the data
available on settlements using the OIC service and
those which had entered the court process.
19/. This confirmed that whilst there was sufficient
data available on the pre-court process, the available
data from HM Courts and Tribunals Service on claims
which have entered the courts for determination was
significantly below the threshold for an effective assessment. The Lord Chancellor therefore decided that
it was not appropriate to undertake a review at that
time.
11/. Prior to the introduction of Part 1 of the CLA[footnote 2], where injury damages could not be agreed by
negotiation, awards were determined by the court.
The court would consider, amongst other things, the
severity and duration of the injuries, and previous
levels of compensation for similar injuries.
12/. This system, which often utilised the Judicial College Guidelines[footnote 3], in the Government’s view
led to compensation levels which were out of step with
the level of pain and suffering endured. For example,
the average award for a whiplash injury with a prognosis period of 9 months prior to the reforms was
around £2,600. The Government felt that this was disproportionate to the injury and contributed to increased insurance premiums for ordinary motorists.
20/. Consequently, this review of the whiplash tariff is
the first time that this requirement has been undertaken.
Tariff structure
21/. The table below sets out the current whiplash tariff structure and compensation amounts split by duration of injury, and by injury type, as set out in the
regulations.
13/. Part 1, section 1 of the CLA introduces a definition
of a whiplash injury for the first time, whilst Part 1,
section 3 of the CLA allows the Lord Chancellor to set
a fixed tariff of proportionate compensation for
whiplash injuries. This measure was, in turn, implemented through the Whiplash Injury Regulations
2021[footnote 4] (the Regulations) which came into
force on 31 May 2021.
22/. To allow for an even progression along the scale,
dependent on the severity of the injury, the injury duration element was set at three month increments for
an injury of a duration greater than six months but
not more than 18 months, and a further six month increment for injuries of a duration of up to two years.
23/. The tariff specifies two sets of figures, one for
whiplash injuries only and one for whiplash injuries
and any minor psychological injuries suffered on the
same occasion. This ensures that compensation can be
paid specifically for minor psychological injury only
where it is present. In both instances, the value of the
claim will be based on the duration of the whiplash injury, so claimants will be able to identify the appropriate compensation by reference to the prognosis in the
medical report.
14/. The tariff presents an ascending scale of fixed sum
payments, with the appropriate tariff figure for any
given claim being determined by the duration of the
whiplash injury incurred. The tariff is split, and claims
can either be made for whiplash injury only or for a
whiplash and minor psychological injury. The compensation a claimant is entitled to depends on the
prognosis period for their injury, which must be set
out in a supporting medical report. The regulations
also specify what constitutes appropriate medical
evidence for the purposes of settling a whiplash claim.
24/. In setting these figures, the government considered a number of factors, including the suggested
guidelines for compensation set by the judiciary, the
average levels of whiplash compensation paid, as well
as the overall government objectives to control costs
and benefit consumers through reduced premiums.
15/. An uplift of up to 20% of the relevant tariff
amount can be applied for if the claimant can demonstrate their injury or circumstances are exceptional.
No specific definition has been provided as to what
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