Whiplash reforms - Myth Busting

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Whiplash reforms - Myth Busting

Published 8 September 2021

As the new reforms reach the end of their first quarter year it is a good time to reflect on what was predicted, myths which have been raised and the reality as the new processes have bedded in. Our experts take a look at some of those myths below and explain why you need to think again.

“Claimants will not know how they can pursue compensation”

Whilst we have not yet seen the official statistics, anecdotal evidence suggests that around 10% of claims being pursued through the portal are from unrepresented claimants.  Some of those claims have already been settled.

This is a new process and social media will undoubtedly ensure over time that more claimants are made aware that it is possible to pursue the claim without the need to engage representatives and pay their costs.  Confidence in the process should grow.

The portal is simple and straightforward to use and walks claimants through the process step by step.  There may be more complicated aspects for claimants to deal with, such as liability or causation disputes but claimants have assistance at each step as to what they should do.  So far we have not heard reports of unrepresented claimants being unable to understand or use the process.

“You need a representative to help you through the process”

As with the point above this is not necessarily the case.  There have been many reported incidents where the SCNF has not been completed accurately.  This is causing problems in dealing with claims, but it appears to be representatives who are doing this not unrepresented claimants.

There is no evidence so far of unrepresented claimants needing advice on liability or quantum at particular points in the process. There has been a great deal of discussion about unbundled services, but it is not clear that the provider market is offering that sort of service. It still appears to be all or nothing, which may not be what is needed. 

“Admissions in the portal are not binding when a case exits the portal”

The issue of admission has caused some confusion but should be clear.  Generally the position is that where an admission is made in the portal it will be binding, but in respect of that claimant only.

The pre-action protocol says:

  • An admission of liability in full or in part is binding on the compensator for all claims presented within the portal, that will cover damages for injury and other protocol damages.
  • Where a claimant starts proceedings for the assessment of damages, the admission will be binding in respect of liability for all heads of damages claimed for (so this will include non-protocol vehicle costs). The admission is binding whether the claim is pursued in accordance with the portal or otherwise.
  • An admission of fault but disputing causation is equally binding.
  • The protocol allows that on receipt of the medical report the compensator may withdraw the admission that the accident caused the claimant any injury, but all other admissions stand.

Practice Direction 27B makes it clear that the admission applies to all claims made by the claimant in proceedings under that practice direction.  If either party applies to court to withdraw an admission, the claim will no longer proceed under PD 27B and must be allocated to fast track.

“E-scooters – the position is not clear.  Are they excluded from the Civil Liability Act and are they VRUs?”

The answer on e-scooters will be different dependent on whether they are being used legally as part of a pilot scheme, or illegally outside of the pilots. 

Part 1 of the Civil Liability Act 2018 (the CLA) applies if the person who suffers an injury:

(i) is using a motor vehicle other than a motor cycle on a road or other public place in England or Wales, or
(ii) is being carried in or on a motor vehicle other than a motor cycle while another uses the vehicle on a road or other public place in England or Wales.

Case Law has established that electric scooters are “motor vehicles” for the purposes of the Road Traffic Act.  As they cannot meet the requirements of the Road Traffic Act (e.g. road tax, technical safety standards) e-scooters remain illegal on public roads, save where they are part of a government pilot scheme.  Unless they are part of a pilot scheme the definition of motor vehicle does not apply as they are not “otherwise intended or adapted for use on the roads”.

It is certainly arguable that e-scooters meet the definition of motor cycles in the Road Traffic Act “a mechanically propelled vehicle, not being an invalid carriage, with less than four wheels and the weight of which unladen does not exceed 410 kilograms.”

Until the pilot scheme is completed it remains unclear what definition will be given to e-scooters and whether they will fall within the definition of VRUs (which is limited by the wording of the CLA and cannot be extended).

For now it should be assumed that when used legally, within the pilot schemes, e-scooters are motor vehicles and are within the portal both as claimants and defendants.

“There is no guidance on exceptional circumstances”

The CLA allows for an uplift to the tariff amount in certain specified circumstances:

that—

(a)the degree of pain, suffering or loss of amenity caused by the whiplash injury or injuries in question makes it appropriate to use the greater amount, and

(b)it is the case that—

(i)the whiplash injury is, or one or more of the whiplash injuries are, exceptionally severe, or
(ii)where the person’s circumstances increase the pain, suffering or loss of amenity caused by the injury or injuries, those circumstances are exceptional.

There are a significant number of claims already in the system where exceptional circumstances have been included within the sum claimed.  The claims that we have seen to date seem to fundamentally misunderstand the word “exceptional”.  The dictionary definition is: unusual; not typical

The courts may not have  given guidance as to how they will interpret exceptional for whiplash, but they have for the application of “exceptional” in fixed costs.

In Ferri v Gill [2019] EWHC 952 (QB), in finding that the Master was wrong to have set a low bar as to what was exceptional HHJ Stewart referred to Hislop and the obiter dictum of Coulson LJ that: “It goes without saying that a test requiring “exceptional circumstances” is already a high one”.

We consider that applying Hislop, Ferri and the dictionary definition of exceptional should provide compensators with the tools that they need to challenge these claims. The vast majority of cases will, self-evidently, not be exceptional.

“It will be so cheap and easy to settle claims that insurers won’t look for fraud”

Although it is early days, all of the signs are that compensators are continuing to run checks and investigate potentially fraudulent claims. Although the tariff damages for a 3 month whiplash claim are only £240, compensators are still carefully scrutinising information from their policy holders where there is a suggestion that there has been no injury at all.

The defined portal process for causation disputes allows compensators to keep their options open until the medical report and schedule of losses has been received. There are also reports of other fraud types such as phantom passenger and induced claims being dropped from the portal – despite the costs consequences of so doing.

“Compensators are using the “complex issues” route to drop claims from the portal in an attempt to ambush Claimants at a later stage”

Allegations of fraud or fundamental dishonesty are never made lightly and should always be backed up by solid evidence – evidence which frequently can’t be gathered and verified within 30 days of the claim being presented.

The use of the complex issues route is therefore the appropriate option for a compensator who has fraud concerns but does not have solid evidence. That is not to say that compensators should not be upfront about what those “complex issues” are – so that Claimants and their representatives are aware of the possibility of an allegation of fundamental dishonesty at a later stage – but the use of complex issues is not a tactic to enable an ambush but rather the appropriate response at an early stage of a claim.

 

We are expecting some data from the OIC later this month which will assist with visibility around volumes, as well as more detail in relation to trends. Some further comment and analysis will follow once the data is published.

Authors

Andrew Parker

Andrew Parker

London - Walbrook

+44 (0)20 7894 6232

Joanna Folan

Joanna Folan

London - Walbrook

+44 (0)20 7894 6350

Emma Fuller

Emma Fuller

Newport

+44 (0)163 365 7891

Catherine Burt

Catherine Burt

Newcastle

+44 (0)191 404 4042

Kevan Smith

Kevan Smith

Birmingham

+44(0)121 698 5361

Stephanie Welsher

Stephanie Welsher

Newport

+44 (0) 163 365 7882

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