Talk about the Civil Liability Bill and the changes it will bring to whiplash claims is rife among those in the legal sector but as yet it has not opened up any wider debate among the general public… until now perhaps? The government won an important victory on the proposed changes in the House of Lords yesterday by just 13 votes.  This means that a system where honest people are painted with the same brush as dishonest people is hovering on the horizon.

 

The Bill proposes set amounts of compensation which will restrict the amount of money you will be awarded if you should suffer a whiplash injury – the determining factor as to whether your personal injury claim falls within the fixed levels of compensation is not the injury itself but how the injury was caused.

 

But what is ‘whiplash’? In a draft order of the Bill laid before parliament, legislators (not medical experts!) define whiplash as:-

 

“…a sprain, strain, tear or rupture of one or more of the muscles, tendons or ligaments in the neck or back. The effects 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 a swelling in the neck.”

 

Sounds nasty?  You haven’t heard the worst of it…

 

Say you suffer a whiplash injury caused by someone driving negligently.  So far, so painful.  Now, consider you suffer the exact same injury but not in a road traffic accident but again the person responsible was acting negligently.  Same injury, same pain.  The difference under the proposed Bill is the amount of compensation you could be awarded.  The compensation for the whiplash caused in the road traffic accident would be substantially lower than the compensation for the whiplash caused in any other negligent way and also lower than it is at the moment.

 

The Bill has outlined the following fixed levels of compensation as follows:-

 

Injury Duration (up to)

Fixed Level Compensation

3 months

£225

6 months

£450

9 months

£765

24 months

£3,725

*The Draft Order proposes a 20% uplift may be made under exceptional circumstances or where they are satisfied a Claimant’s pain, suffering and loss of amenity is of a higher degree.

 

Problems with the proposed fixed levels spring to mind immediately;

  • What if you suffer several of the injuries, as defined above, as opposed to just one?
  • Is the pain of a sprain comparable to a torn tendon?
  • Is a torn ligament more painful if the injury is to the knee rather than the neck?

 

The list goes on.

 

In comparison the current system is able to take into account multiple injuries and to take into consideration an individual’s pain, suffering and loss of amenity for a specific injury and in making the award attempts to ensure that the level of compensation is relative to the severity of the injury.

 

As addressed in my colleague Melanie Rowe’s article of 27 April 2018, the reasoning behind components of the draft Bill may be to confront the myth that is, the ‘compensation culture’ but the pain, suffering and inconvenience resulting from an injury caused in a road traffic accident is no greater or less than the same injury brought about in any other way.  It appears the legislative arm is using a sledge hammer to crack a nut and in doing so is attempting to chip away at the bedrock of our judicial system, that is; fairness, proportionality and, perhaps to coin a new phrase, equality of injury?

 

Opponents of this controversial system were defeated in the House of Lords yesterday when an attempt by Lord Woolf to have it removed from the final Act was narrowly voted down.   Lord Woolf said the the proposed new system “offends an important principle of justice, because it reduces the damages that will be received by an honest litigant because of the activities of dishonest litigants”.

 

The Bill now returns to the House of Commons.

 

If you have any queries or want to discuss a claim for personal injury, please contact Nalders.

Truro | Farley House

Tel: 01872 241414, Fax: (01872) 242424

St Austell

Tel: 01726 879333, Fax: (01726) 67401
Falmouth
Tel: 01326 313441, Fax: (01326) 315971
Newquay
Tel: 01637 871414, Fax: (01637) 879414

Truro | Lemon Street

Tel: 01872 241414, Fax: (01872) 271019
Camborne
Tel: 01209 714278, Fax: (01209) 710437
Helston
Tel: 01326 574001, Fax: (01326) 564547
Penzance
Tel: 01736 364014, Fax: (01736) 364054

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