Since 2013, the personal injury landscape has seen significant change due to the Government's drive to reduce the cost of litigation for insurers. The most recent is the introduction of the Civil Liability Act 2018 ('CLA 2018') which is the Government's attempt to repair what it perceives to be a broken system.
With the implementation of the CLA 2018 now delayed until August 2020 it is more important than ever for Claimants to seek legal advice as soon as possible if they have been injured as a result of an accident in the last three years which was not their fault.
We take a look below at the forthcoming changes and the wider impact these reforms will have on those who have been injured as a result of negligence.
Who will be affected by the changes under CLA 2018?
CLA 2018 mostly affects individuals who have suffered a whiplash injury as a result of a road traffic accident where they were an occupant in the vehicle i.e. the driver or a passenger. Vulnerable road users such as pedestrians, cyclists and horse riders are excluded.
What are the changes under the CLA 2018?
There are a number of key changes under the CLA 2018:
- A whiplash injury is now defined by the Act as an 'injury of soft tissue in the neck, back or shoulder that is… a sprain, strain, tear or rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder, or an injury associated with a muscle, tendon or ligament in the neck, back or shoulder.'
- Claimants who have suffered a whiplash injury lasting up to two years, where they were an occupant in a vehicle, will be determined by a tariff-based award scheme.
- There will be a new Portal system designed for use by Claimants as litigants in person.
- The small claims limit will rise from £1,000 to £5,000 for a victim of a road traffic accident (excluding vulnerable users) which means the majority of Claimants who have suffered a whiplash injury as a result of a road traffic accident will not be entitled to recover their legal costs from the insurers of the party who caused the accident. For all other personal injury claims the small claims limit will rise to £2,000.
- The discount rate for 'future loss' claims has been set by the Lord Chancellor at -0.25% without input from an independent expert panel. This applies to all claims, not just those for whiplash injuries.
What do the changes mean for Claimants?
Whilst the Government will insist the changes are intended to reduce 'fraudulent claims' and ultimately motor insurance premiums, it seems the impact on Claimants and their right to access justice has not been properly considered. So, what does that mean for those who have genuinely suffered injury as a result of someone else's negligence?
Claimants are likely to face significant difficulties in accessing legal representation and obtaining an appropriate level of damages, for example:
The new definition for whiplash is wider and goes beyond the scope of the universally agreed medical definition, and individuals whose injuries previously would not be considered as a whiplash injury will be caught within the definition and subject to the changes and restrictions of CLA 2018.
Whilst the tariff scheme is yet to be published the suggestion is that Claimants who have suffered a whiplash injury for up to six months could receive as little as £450 whereas under the current guidelines, Claimants would likely receive an award in the region of £2,000 for the same injury.
An individual whose claim is worth less than £5,000 (or £2,000 for any other claim) is likely to struggle to obtain legal representation as there is no longer a right to recover costs from the insurers of the party at fault. Individuals will either have to enter into Damages Based Agreements with Solicitors, or represent themselves and risk being exposed to prejudice by the insurers. The biggest concerns are:
- Insurers may adopt a 'deny all' approach on liability and Claimants may not have the time or the legal expertise to argue their case, thereby losing their right to claim.
- If medical experts are not prepared to accept instructions from Claimants directly, litigants in person may have no choice but to be examined by the insurer's medical expert, who could be 'Defendant biased' leading to less favourable medical evidence.
- The tariff scheme for reduced damages for RTA claims,
- Insurers may make low offers for injuries and financial losses which Claimants do not have the experience or legal knowledge to calculate or argue.
- Without legal advice, Claimants may be forced to represent themselves and navigate complex legal procedures, medical terminology and settlement negotiations where the insurers are likely to have the 'upper hand'. This undermines the fundamental principle of the rule of law of justice and fairness.
Ministers have also dropped proposals to offer litigants in person free mediation through the new RTA claims portal where liability has been denied by the insurers. This means litigants in person would be faced with pursuing the matter to Court to establish fault of the other party which would undoubtedly be a daunting and complex process, putting most Claimants off making their claim and will ultimately incentivise insurers to deny liability.
How can we help?
It is more than ever vital to seek specialist legal advice at the earliest opportunity. To arrange an appointment with one of our personal injury specialists, or to discuss your individual circumstances in further detail, please contact our Client Relations Team today on 01603 693500 or email us using the 'Make an enquiry' form on our website. Appointments are available at our Norwich, North Walsham and Sheringham offices.
Visit our dedicated webpage on personal injury for further information on how to make a claim.
*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.
