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If you have been seriously injured in a road traffic accident which occurred on or after 31 May 2021, then you will not be affected by new rules which recently came into force in England and Wales and which are collectively referred to as the whiplash reforms. You will also not be affected if you fall into a category of persons who are specifically excluded by the rules, which includes vulnerable road users like pedestrians, cyclists and motorcyclists to name a few.

This matters because if you are not caught by the reforms then, unlike people who are:

• you will not face a cap on the amount of compensation that you can claim for whiplash and minor psychological injuries; and
• you will continue to be able to recover any legal costs that you incur from your opponent, provided that your injuries are assessed as being worth more than £5,000 and the total value of your claim (including for things like loss of earnings) is worth more than £10,000. 

Note that a partial exclusion from the effects of the reforms also applies in respect of injury claims made on behalf of children and people who lack mental capacity.

FAQs

Despite widespread publicity, there is still a lot of confusion about who is caught by the new rules and who is not.  The aim of this blog is to clarify the situation and to answer some of the most frequently asked questions that have been posted to Google since the rules came into force.  

For a high level summary of the reforms, please refer to our earlier blog posted on 4 May which you can access here: What We Are Doing To Help Clients Navigate New Rules Which Mean That Some Road Traffic Accident Victims Will Have To Make DIY Compensation Claims – Step Legal Solicitors

Who is excluded from the whiplash reforms?

You will not be affected by the whiplash reforms where:

• you have suffered whiplash which has caused symptoms that have lasted for more than two years;
• you have suffered whiplash and associated psychological trauma which is sufficiently serious to have warranted diagnosis of a recognised psychological condition, like post-traumatic stress disorder (PTSD); 
• you have suffered whiplash and other injuries, like a broken wrist, which together are worth more than £5,000; 
• the total value of your claim (including financial losses) is in excess of £10,000;
• you are making a claim on behalf of someone who has died (a fatal accident claim), or you are bringing a claim against another road user who is now dead;
• you are an undischarged bankrupt i.e. someone who is subject to an active bankruptcy order; or 
• you are making a claim against someone who was driving a vehicle which, at the time of the accident, was not registered in the UK.

You will also be excluded from the reforms if you can be categorised as a vulnerable road user or if the accident in which you were hurt occurred in Scotland. 

Who counts as a vulnerable road user under the whiplash reforms?

Accident victims who are classed as vulnerable road users include:

• pedestrians;
• cyclists (including those who are injured while riding an e-bike);
• motorbike riders;
• pillion passengers or those hurt while travelling in a side car;
• wheelchair or mobility scooter users; and
• horse riders.

Will the whiplash reforms apply if I have been injured on an e-scooter?

The riders of e-scooters are not currently classed as vulnerable road users.  However, there is widespread consensus among the legal profession that they ought to be and we as a firm are happy to take on cases involving e-scooters, and particularly those where an injury has occurred while a scooter has been used under the Government’s nationwide e-scooter hire trial scheme.  

Are claims made on behalf of children excluded from the whiplash reforms?

Claims made on behalf of anyone under the age of 18 fall into a special category.  They are not caught by the ban on the recovery of legal fees, which means that you can continue to claim the payment of solicitors costs in the event that your claim is successful. 

However, where part of your claim seeks compensation for whiplash injuries lasting less than two years and which are accompanied by only minor (if any) psychological trauma, then the payout you receive will be subject to the new cap that the reforms impose, which means that the whiplash and psychological harm element of your claim will be limited to between £240 and £4,345 or, in exceptional cases, to between £288 and £5,214.

Note that the same rules apply in respect of claims made on behalf of accident victims who lack mental capacity, like dementia suffers or someone who has been left in a coma as a result of the injuries they have sustained. 

Will the whiplash reforms apply if I have suffered whiplash and another type of injury?

Where you have suffered whiplash and another type of injury, then how your claim is dealt with will depend on how much your injuries are likely to be worth in total, and also on the value of your overall claim including financial losses.

Where the injuries element of your claim is worth no more than £5,000, and the overall value of your claim is worth no more than £10,000, then your claim for whiplash will be subject to the limits imposed by the new rules. Your claim in respect of any other injuries will be assessed by the court, assuming that the value of these cannot be agreed with your opponent.

However, where the injuries element of your claim is worth more than £5,000 and the overall value of your claim is not worth less than £10,000, then your claim for whiplash will not be subject to the new limits and instead the entirety of your claim will be assessed by the court.  

Background to the reforms

The whiplash reforms were introduced in an effort to drive down the high number of fraudulent and exaggerated whiplash claims that the insurance industry say they receive, and which they estimate cost them £2 billion a year and add £90 to the cost of the average car insurance policy. 

They were also introduced to lower the cost to insurers of dealing with minor road traffic accident claims, by removing the liability that they used to have to cover a victim’s legal costs in any case where the injuries sustained warranted a payout of more than £1,000.  Under the new rules, legal costs will not be recoverable where the value of injuries does not exceed £5,000.

As a result of this, most solicitors will not now accept instructions to deal with minor injury claims unless a full or partial exception applies and which continues to allow them to seek payment of their costs from an accident victim’s opponent rather than from the accident victim themselves.   

Need more information?

To find out more about bringing a claim for personal injury compensation following a road traffic accident, please call us on 0800 1956412 and ask to speak to Abid Hussain, Anna Rushton or Dominic Jones.  We offer a free initial consultation and where your claim is not caught by the whiplash reforms we will usually be able to advise you on a no win, no fee basis.    

If you require advice on a road traffic accident claim in Polish, then please contact Agnieszka Kulas on 01270 254064.