May 9, 2018

Civil Liability Bill: Whiplash injury definition and tariffs published

New draft regulations set out detail lacking from the Civil Liability Bill

Following criticism of the lack of detail contained within the initial draft of the Civil Liability Bill regarding the definition of a 'whiplash injury' and also the proposed tariffs for such injuries, the Government has published The Whiplash Injury Regulations ("the Regulations").

The Regulations must be welcomed as clarifying one of the main areas of contention within the Civil Liability Bill. However, as expected, there are critics of the Regulations, with the battle lines very much drawn along the same lines as those seen throughout the progression of the Bill.

The Bill will now progress to the Committee stage in the House of Lords, which will involve a line by line examination of the Bill, commencing on 10 May.

Whiplash definition

Section 1(1) of the Bill stated that 'whiplash injury' means "an injury, or set of injuries, of soft tissue in the neck, back or shoulder that is of a description specified in regulations made by the Lord Chancellor".

The Regulations expand upon this, setting out at Regulation 2 that:

"whiplash injury” means a sprain, strain, tear or rupture of one or more of the muscles, tendons or ligaments in the neck or back which has been caused by the backward or forward or sideways movement of the neck beyond the limit of its normal range of motion, the effects of which may include, but are not limited to—

(a) pain in the neck, back, shoulders or arms;

(b) reduced mobility in the neck, back or shoulders;

(c) headaches;

(d) muscle spasms; or

(e) swelling in the neck."

There may be satellite litigation on the definition as third parties seek to circumnavigate the proposals by avoiding a reference to a whiplash injury as defined above. A lower back injury for example, said not to have been caused by 'movement of the neck', might produce pain and reduced mobility, but will not fall within the above definition.

Lord Keen's recent confirmation that cyclists, motorcyclists and other road users will be excluded from the whiplash measures in the Bill is not a surprise, as the wording of the Bill makes it clear that it does not include motorcyclists, cyclists and pedestrians.

However, he also made clear that the intended increase to the small claims limit to £5,000 for road traffic accident injury claims will apply to all road users, including motorcyclists, cyclists and pedestrians.

Whiplash tariffs

The Regulations mirror the proposed tariffs set out within the aborted Prison and Courts Bill from the first half of 2017. Interestingly, the tariffs do not take into account the inflationary increases seen within the Judicial College Guidelines since that time. 

The tariff system remains as expected at this stage, but one of the suggested amendments to the Bill (as discussed below) proposes that the tariff system be applicable to those injuries up to 12 months in duration.

Settlement requires MedCo expert evidence

Further to the Bill effectively banning offers to settle whiplash claims in RTA related incident without sight of medical evidence first, the Regulations confirm that only a report provided by a MedCo accredited expert will constitute appropriate evidence of an injury.

As we have stated previously, insurers tended to attempt to settle typically short prognosis, low value cases on an economic basis. The reduction in settlement values in the tariff system and the requirement for a MedCo report will mean there would be less commercial value in doing so in any event.

The requirement for the medical evidence to obtain via a MedCo accredited expert is not surprising, but this will place further pressure on the insurance industry who offered to fund the initial build for a new personal injury portal in light of the expected changes.

Uplift in exceptional circumstances

The Regulations provide that the maximum by which a Court award can be uplifted. This can be done where a Court is satisfied that the whiplash injury sustained, which can include one or more psychological injuries, makes it appropriate to do so, and the circumstances giving rise to the pain and suffering are exceptional.

However, it is clearly stated that the tariff figure must be used as the base line, and any uplift can be no more than 20% greater than the tariff amount for the whiplash injury. 

The Bill and Regulations do not provide clarity on how multiple injury claims will be handled under the new regime. However, it appears to be the position that in such circumstances, the whiplash element of any multiple injury claim will be subject to the tariff.

Proposed amendments

A massive 96 proposed amendments have been made to the Bill to date, some of which are set out below:

  • As stated above, to reduce the scope of the Bill from injuries lasting for two years to those lasting 12 months;
  • To ensure that the tariff regime is not introduced until the Civil Procedure Rules Committee has made a decision on increasing the small claims track (SCT) limit.
  • To limit the proposed increase in the SCT for RTA claims to £1,500, and limiting any further increases by reference to inflation;
  • Requiring an independent adjudicator to review of the progression and operation of the whiplash reforms after two years;
  • To allow the Judicial College or the Civil Justice Council to set the damages tariff;
  • Removing a defendant's ability to argue that an injury would have lasted less than two years if the claimant had taken steps to mitigate the injury;
  • Ensuring that insurance savings are passed on as stated by insurers, including the production of a report to both Houses setting out the impact on insurance premiums a year after the Bill is passed.

Many of these amendments are unlikely to make it past the Committee stage, but the amount and varied nature of the proposals indicate that the Bill remains a contentious piece of legislation for many.