Government's draft whiplash regulation divides industry

Houses of Parliament

Legislators have revealed proposals for an updated whiplash definition and damages tariff, prompting fresh debate across the industry.

According to a draft of the Whiplash Injury Regulations revealed yesterday, total damages for pain, suffering and loss of amenity payable for injuries lasting more than 19 months, but not more than 24 months will be £3725.

The draft order of the Civil Liability Bill put total damages for a whiplash injury lasting lasting less than three months to £225. The figure increases to £450 for injuries up to six months, and to £765 where the injuries last nine months.

The legislation leaves room for greater pay outs with the inclusion of an uplift of up to 20% in “exceptional circumstances”.

A claim can only be settled and damages awarded if evidence of the injury is provided in a fixed cost medical report from an accredited medical expert selected via the Medco Portal.

In the draft regulation whiplash injury is defined as: “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— pain in the neck, back, shoulders or arms; reduced mobility in the neck, back or shoulders; headaches; muscle spasms; or swelling in the neck.”

The news was been welcomed by the Association of British Insurers described government as taking “a common sense approach” with the new tariff measures.

Rob Cummings, head of motor and liability at the ABI, said: “The tariff aims to reflect the degree of pain, suffering and loss of amenity, which can be highly subjective. Using the duration of an injury is a common sense approach and has been part of the government’s proposals from the start.

“A clause allowing an uplift in the pay out in exceptional circumstances is also included. Those trying to oppose the progress of this bill seem to be grasping at straws.”

Critics

Critics of the legislation said is a defensive move by politicians to mollify earlier criticism from the House of Lords and fails to address issues raised by the delegated powers committee, notably that the power to set compensation is being handed to politicians rather than judges.

Simon Stanfield, chair, Motor Accident Solicitors’ Society, said: “These hastily prepared draft regulations fail to address the fundamental issues about the politicisation of damage awards by the judiciary and a medical diagnosis by civil servants rather than medical experts.

“This response to the widespread criticism of the Bill from all sides of the Lords falls spectacularly short. Our hope is that Peers will see this for what it is – a poor defence of the Ministry of Justice’s land grab of an independent judicial process.”

Andrew Twambley, spokesperson for Access to Justice, said: “This is a defensive move by the MoJ to mollify Lords from all sides of the House who have roundly criticised the Civil Liability Bill for being undercooked and avoiding the key issues: What about genuine claimants? Why isn’t the government closing down cold callers? And why is the power to set compensation being taken out of the hands of our impartial judges and given to politicians, who are exposed to lobbying from within and outside Parliament.”  

“By tabling these regulations, ministers have betrayed their lack of confidence in their own reforms and are running scared of a full scale debate in Parliament. They know the evidence base is weak and prefer to legislate by the back door through Statutory Instrument.”

Twambley added: “It is a defensive ploy but doesn’t address the fundamental issues, namely that genuine claimants will lose their legal rights, and the control of compensation is to be handed to politicians rather than members the judiciary.  

“The government has yet to come up with a decent answer to the risk that if the reforms become law, ordinary people, injured through no fault of their own, will be denied access to justice, and instead giant insurers will benefit by as much as £630m a year.” 

The Bill will be passed on to the committee stage on Thursday.

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