By Matthew Best, Senior Underwriting Manager
(Estimated reading time: 3 minutes 27 seconds)
The Civil Liability Bill that went through parliament during 2018 was aimed at two distinct aspects of personal injury claims – lawyers responsible for lower value RTA claims and the discount rate. It is the former that I concentrate on in this article and seek to provide some clarity on.
It seems obvious to me the wording of the Act is convoluted, detailed and designed to keep most whiplash claims within the new regime in order to cut costs. Matters captured under Part 1 of the Act are whiplash type claims. Sec 1(2) of the Act defines whiplash as “an injury of soft tissue in the neck, back or shoulder” that is:
- A sprain, strain, tear, rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder; or
- An injury of soft tissue associated with a muscle, tendon or ligament in the neck, back or shoulder.
You may say what is convoluted about that? The short answer is, not much. However, there is a broad exclusion which may take some mixed claims out of the Act. Under the new legislation an injury is not defined as a whiplash injury if:
- it is an injury of soft tissue which is part of or connected to another injury, and;
- the other injury is not an injury of soft tissue in the neck, back or shoulder of a description falling outside [Section 1(2)], set out above.
It is the phrase in bold italics above that has no statutory or judicial guidance on what is meant by it. The then Justice Minister, Rory Stewart, speaking on 23 October 2018 offered some guidance on this, but nothing substantial.
We must also not forget that it is not only the nature of the injury that is relevant, but also the time factor. Within Section 6, the bar on pre-med offers is only applicable to whiplash claims falling under Section 3 (where the tariff for damages is implemented). This refers to claims where the duration of any whiplash injuries suffered “does not exceed, or is not likely to exceed, two years”. Consequently, if a whiplash injury has already lasted more than two years or would be likely to, it seems that a pre-med offer could indeed still be made.
But what about medical evidence?
Where a whiplash injury does fall under the Act, a regulated person is not able to make an offer or payment in settlement of the whiplash claim, or arrange or advise settlement, without first seeing “appropriate evidence”. Likewise, a regulated person cannot arrange or recommend acceptance of a settlement unless there is medical evidence.
This is the next ‘unclear’ piece of the Act. It does not indicate what will amount to “appropriate medical evidence” – detail on this will be set out in secondary legislation.
One thing that is perhaps clear are the limits of the Act. To begin with, the Act only applies to causes of action taking place after 31 May 2021. In addition, it only applies to:
- Claims brought by someone who was injured whilst using a motor vehicle, excluding a motorcycle.
- Vulnerable road users using a wheelchair, bicycle or other pedal cycle, horse riders and pedestrians are outside the Act.
- E-bike riders are not included within the express wording of the Act. Under the Electrically Assisted Pedal Cycles (Amendment) Regulations 2015, e-bikes are excluded from motor vehicle registration and are arguably not mechanically propelled, so would appear to be outside the Act.
- For mobility scooter users, the situation is less clear. Lower value claims brought by mobility scooter users are expressly within the OIC. We believe it consistent for these claims to be treated the same as other vulnerable road users’ claims.
So here we have a part ‘clear’ and part ‘as clear as mud’ Act. How has it affected your business? Here at Temple, we are still receiving many enquiries on ATE cover for matters that now come under the new regime. if this is something you require, I would be delighted to explore a simple solution with you.
I am interested to gauge the thoughts and experiences of all practitioners affected by this Act.
Please call me on 01483 514804 or email matthew.best@email@example.com with your observations or to discuss your ATE insurance requirements.
Matthew Best Cert CII
Matt has an insurance background and joined Temple in 2011 having worked for 4 years in a leading insurance company where he was dealing with personal injury work. Matthew was promoted to Underwriting Manager and subsequently Senior Underwriting Manager taking on overall responsibility for Temple’s personal injury and clinical negligence underwriting department.
In 2022 Matt joined the board of directors as Director of ATE Partnerships. Matthew has cultivated fantastic relationships with our business partners for many years. His ability to build a clear understanding of their requirements and more importantly what is required to fulfil such requirements means he is ideally placed to support the strategic direction of the company.
Matt remains the head of the personal injury and clinical negligence department and is committed to all Temple’s business partners in order to deliver the highest level of service they expect. He is also responsible in making sure that Temple’s ATE and disbursement funding products remain competitive, but most importantly that they are fit for purpose for solicitors and their clients.
Read articles by Matthew Best Cert CII