Plans to reform whiplash cause frustration within the legal profession
Lawyers have condemned government plans to raise the small claims limit and curb the right to claim for whiplash and other soft-tissue injuries.
The Ministry of Justice (MoJ) consultation, Reforming the soft tissue injury (whiplash) claims process, is due to close this week. It proposes that compensation for pain, suffering and loss of amenity (PSLA) for minor whiplash claims either be removed entirely or replaced by a fixed sum. It proposes a tariff of payments for more significant whiplash claims, raising the small claims limit in personal injury claims from £1,000 to £5,000 and banning the settling of whiplash claims without a medical report from an accredited medical expert. Claimants would still be able to claim for other forms of loss such as medical costs or the loss of earnings.
According to the MoJ, the number of personal injury claims following a traffic accident is 50% higher than in 2006.
However, Amanda Stevens, group head of legal practice at Hudgell Solicitors, said: “The consultation proceeds on the assumption that soft-tissue injuries are inconsequential and do not need compensation—when the reality is very different.”
“What is so frustrating is that many of the reforms are expressly stated to be based on anecdotal evidence.”
Writing in NLJ this week, Patrick Allen, senior partner at Hodge, Jones and Allen, said it is generally acknowledged that modern cars are stronger but stiffer thus reducing more serious injuries but leading to more soft tissue claims.
He said there had been seven MoJ consultations on raising the small claims limit in the past 10 years, each one reaching the same conclusion. This was that the small claims track is not suitable for personal injury claims because “the no cost rule means claimants will not have legal representation”.
Consequently, future claimants would be expected “to be able to understand and apply the law of negligence, liability, causation and quantum, instruct and pay for a medical expert, quantify their claim, pay a court fee, obtain witness evidence from independent witnesses, negotiate with insurers and ultimately appear in court as their own advocate against a legally experienced opponent”.
