The 2021 whiplash reforms are a raft of changes to the law concerning personal injury claims for road traffic accidents. The changes unashamedly favour motor insurance companies: reducing compensation awards and abolishing the chance to recover legal costs in the majority of road traffic accident claims.
You can read, or listen to, the thoughts of Truth Legal founder Andrew Gray on these changes here, but to help you understand them – and what they could mean for you – we’ve put together this guide.
Will my claim be affected by the 2021 whiplash reforms?
Your claim will be affected if you meet all of the following conditions:
- You are over 18.
- You were injured in a road traffic accident.
- The accident occurred on or after 31st May 2021.
- You suffered whiplash injuries (see ‘What counts as a ‘whiplash injury’?’ below).
- You were a driver or passenger of a motor vehicle (this does not include motorbikes and scooters).
- Your injuries are worth less than £5,000 and the total value of your claim is less than £10,000 (see ‘How do I know if my injuries are worth less than £5,000 or not?’ below).
If I meet these conditions, what do the whiplash reforms mean for my claim?
The whiplash reforms make a number of changes to how an affected claim is dealt with, but the main effects you will notice are:
- You must make your claim through a new Official Injury Claim portal.
- Your whiplash injuries will be valued according to a fixed tariff.
- You will be unable to include any legal fees or costs in your claim.
Later questions in this guide provide more detail on each of these effects. But the key implications are that:
- Your compensation award is likely to be lower than would be anticipated in an unaffected claim; and
- You will not be able to instruct solicitors, or engage any legal representatives, to help you bring your claim.
Another change introduced by the reforms is a ban on ‘pre-medical offers of settlement’ in affected claims. This means that offers to settle a claim can no longer be made before a medical report on your injuries has been obtained.
What counts as a ‘whiplash injury’?
The reforms define a whiplash injury as a soft-tissue injury to the neck, back or shoulder. In those areas of the body, this includes:
- Damage to muscles, tendons, or ligaments (i.e. sprains, strains, tears, ruptures, or lesser damage); and
- Damage to soft-tissues associated with muscles, tendons, or ligaments.
However, whiplash injuries do not include:
- Damage to soft-tissue which is part of, or connected to, a non-whiplash injury. For example, a broken arm will inevitably have some damage to the soft-tissues around it but would not count as a whiplash injury, even there is muscle damage at the shoulder.
How do I know if my injuries are worth less than £5,000 or not?
This is a very fair question. If you are still experiencing symptoms, there is no way you can possibly know whether your injuries are, or will be, worth less than £5,000.
However, the £5,000 threshold is a high one; and in reality, the overwhelming majority of whiplash injuries will be worth less than that.
For a whiplash injury to exceed a value of £5,000, a medical expert would have to believe that, in their medical opinion, the injury had persisted for longer than 2 years and – more crucially – that the symptoms throughout that time were attributable to the accident. This is rare for a soft-tissue injury, especially when a medical expert will consider any previous aches and pains you may have had in the injury’s location before the accident, and also any symptoms which may be expected as a result of the natural ageing process.
With all that said, you almost certainly won’t have this level of information to work with when assessing your injuries at the start of the claim. Government guidance, at the time of writing, suggests that the Official Injury Claim site will assist claimants to value their injuries.
What is the Official Injury Claim portal?
The Official Injury Claims portal has been set up alongside these reforms to allow claimants without legal representation to make their claims. If your claim meets the conditions of a whiplash injury claim (see ‘Will my claim be affected by the 2021 whiplash reforms?’ above) you will have to make the claim through the Official Injury Claim portal.
The portal itself is an online system where you can submit details of your claim, arrange medical evidence, and communicate with the motor insurers you are claiming from.
Claims can leave the Official Injury Claim process if they are no longer eligible to proceed through it. For example, if the insurers you are claiming from deny that their insured driver is responsible, or evidence shows that your injuries are more severe than first thought.
Why can’t I instruct Truth Legal to help me with my claim through the Official Injury Claim portal?
The whiplash reforms have removed the possibility for legal costs to be recovered in whiplash injury claims. The sad fact is: it is not financially viable for Truth Legal to help in these claims.
In non-whiplash personal injury claims, legal costs are usually covered under a No Win, No Fee Agreement. This arrangement means, in a successful claim, the bulk of legal fees can be recovered from the responsible party (but usually their insurers), and a small part of the claimant’s compensation award is deducted to cover the rest. In an unsuccessful claim, no legal fees are charged under the Agreement – as its name suggests.
However, in a whiplash claim, because legal fees cannot be charged to the responsible party or their insurers, it means a No Win, No Fee Agreement is not possible.
Similarly, with compensation awards also being much lower for whiplash claims, it would not be financially viable for a claimant to fund the legal fees themselves. A huge amount of work and technical skill goes into bringing a personal injury claim correctly. A claimant would likely end up spending more than they would recover in compensation.
What if I have suffered whiplash injuries and non-whiplash injuries?
Government guidance suggests that, if there is a whiplash injury alongside another injury then the claim can still be dealt with through the Official Injury Claim process (as long as the overall injury value is less than £5,000). The whiplash injury part of the claim will still be valued based upon the tariff, with the non-whiplash injury amount being assessed by a court if the sides cannot agree.
What if I have suffered psychological symptoms?
Provision is made for so-called ‘minor psychological injuries’ within the tariff for whiplash injuries. The law introducing these reforms does not define what the term does and does not cover. However, it is likely to encompass most psychological symptoms which do not support a formal diagnosis of a recognised psychiatric condition – such a PTSD, for example.
If you have suffered one or more minor psychological injuries, a different column on the tariff is intended to compensate for this, by making a slight increase in the injury award (see the tariff table below).
What is the tariff used to value whiplash injuries?
Whiplash injuries are valued according a new tariff, introduced by the reforms. The compensation award is based purely on how long the injury lasted, and whether or not psychological symptoms were also suffered.
Courts have also been granted the power to apply an increase of up to 20% to an award under the tariff in ‘exceptional circumstances’.
|Duration of Injury
||Amount (for Whiplash Alone)
||Amount (for Whiplash and Minor Psychological Injury)
|Not more than 3 months
|More than 3 months, but not more than 6 months
|More than 6 months, but not more than 9 months
|More than 9 months, but not more than 12 months
|More than 12 months, but not more than 15 months
|More than 15 months, but not more than 18 months
|More than 18 months, but not more than 24 months
These figures are intended to compensate you for the pain and suffering that the injury has caused you, as well as for the effect it has had upon your enjoyment of life. If you would like to compare this tariff with the way in which injuries are valued in non-whiplash injury claims, our in-depth legal guide to road traffic accident claims contains a section on how this works.
Do whiplash injuries sustained in other kinds of accident (not road traffic accidents) come under the new regime?
No. The 2021 whiplash reforms only apply to road traffic accidents. This means that whiplash injuries suffered through a slip, trip, or fall, or through an accident at work, for example, will not be affected by these changes.
What kinds of road traffic accident claim are not affected by these changes?
The government excluded personal injury claims made by vulnerable road-users from the 2021 whiplash reforms. This means that if you were injured in a road traffic accident as:
- A pedestrian (including if you were in a wheelchair or on a mobility scooter)
- A cyclist
- A motorcyclist (including if you were a passenger on a motorbike)
- The rider of a scooter (as a driver or passenger)
your claim will be unaffected by the whiplash reforms and Truth Legal will be able to help you in your claim. This is the case even if you suffered whiplash injuries in the accident. Additionally, the tariff of compensation awards for whiplash injuries will not apply.
Personal injury claims made by children under 18 are similarly unaffected.
Where can I get further information?
Unfortunately, at the time of writing, many questions remain unanswered about how this new process will work. The government has produced its own FAQ on the whiplash reforms but this is vague on a number of points. It is expected that further guidance will appear on the Official Injury Claim website in future.