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Editorial: Consultation on Soft Tissue Injuries in RTAs - Aidan Ellis, Temple Garden Chambers

22/11/16. Earlier this month, the Ministry of Justice announced a consultation process on its long awaited scheme to reduce the burden of whiplash cases. It includes a largely predictable package of measures including reducing or removing compensation for minor soft tissue injuries and increasing the small claims limit. The plan is clearly to eliminate or substantially reduce the incidence or value of “minor” personal injury claims. Apparently, insurers have pledged to pass the anticipated savings onto consumers and so we can all look forward to a £40 reduction in our car insurance premiums as a result. Looking beyond the headlines, readers may be interested in the detail of the proposals.

First, the difficult question – which I had thought might make the whole scheme unworkable – is the definition of a “minor” claim. The proposed elements involve a “primary” soft tissue injury, with perhaps a “minor psychological injury secondary” and the proposal is to consult on whether the line in the sand should be drawn at injuries which resolve in six months or nine months. The definition is limited to “an occupant of a motor vehicle”; those who sustain minor injuries in tripping accidents or in the course of employment are thus unaffected. It is not limited to neck / back injuries; banged knees and arms would also be covered. But some crumb of comfort is that the preferred cut-off point of six months is less draconian than it might have been; there appears to be no suggestion that injuries lasting more than nine months could be caught.

Second, the consultation suggests either removing compensation altogether for injuries which fall into the minor category or allowing fixed compensation of £400 (rising to £425 if there is an additional psychological injury). The minor injuries section in the current JC Guidelines suggest that the only injuries which would be awarded an equivalent amount on assessment today, would be those that resolve in less than 7 days. It is very striking that we are now talking about allowing that sum in respect of injuries lasting six months. The £25 increment for psychological injuries, in particular, is remarkable.

Third, a rigid tariff system is proposed for soft tissue injury claims where the injury lasts up to two years. The suggested tariff starts at £700 for injuries lasting 7 – 9 months (with psychological injury £740) and moves up in steps so that an injury lasting 19 – 24 months would attract £3,500 (£3,600 with additional psychological injury). Interestingly, the fixed awards for injuries towards the top of the tariff are not wholly unrecognisable from current awards; consistent with the intent to constrain low value cases, it is injuries lasting less than 15 months which bear the brunt of the proposed reform. Moreover, the view must have been taken that psychological injuries add very little to the level of pain, suffering and loss of amenity in these kind of cases – the additional amounts in cases with a psychological injury are minimal.

Fourth, perhaps the most disturbing measure is the proposed increase in the small claims limit. The options proposed are either to raise the limit on general damages to £5,000 in all personal injuries claims or all road traffic claims. The deliberate impact of increasing the small claims limit would be to remove lawyers from these cases: Finland and Norway are held up as examples of jurisdiction in which lawyers are not used for low value personal injury cases and any doubt about the government’s intention is removed by the consultation on better ways to support litigants in person on the small claims track. Glancing through the JC Guidelines, injuries potentially worth less than £5,000 include soft tissue injuries lasting two years, simple broken wrists resolving in one year, loss of part of a little finger, fracture of one finger, ankle or leg injuries lasting one year or superficial scarring. These are not easily dismissed as minor injuries. The suggestion that all can be dealt with (even employers’ liability disputes) without any legal advice is concerning.

Now that the illusion that these reforms would be forgotten as the government navigates the Brexit labyrinth has been shattered, we confront the reality. Over time, reform – including the introduction of fixed fees on the lower reaches of the multi-track – is probably inevitable. At heart, the argument now seems to one of detail: when exactly does an injury cease to be ‘minor’, so that it justifies instructing lawyers and receiving more than a restricted tariff in compensation?

Aidan Ellis
Temple Garden Chambers

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