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How to Claim Whiplash Injury Compensation

Whiplash Injury Claims – Procedure, CPR, law updates (for non-solicitors)

How to claim for whiplash injury has been changed once again by the Government to try to reduce legal and medical costs in low value soft tissue injury claims known as whiplash injury. The new updated procedural law will take effect from the 1st October 2014 where the Claim Notification Form is submitted after this date. The full changes to procedure can be found here – whiplash injury compensation changes and other protocols.

The changes in summary control:

  • The cost of medical reports
  • Independence of the medical expert
  • The number of medical reports
  • Reduce the “sting” of pre medical part 36 offers

Whiplash Injury Claims – Definition

Whiplash for soft tissue injury claims are set out as follows:-

‘a claim brought by an occupant of a motor vehicle where the significant physical injury caused is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury’

Thus at first analysis the new whiplash injury protocol only applies if the injury is secondary to any psychological damage. Thus there are many occasions where the whiplash injury is mild but the psychological effects are long lasting. In this scenario this type of case will be unsuitable for the new protocol.

Fixed cost medical reports

The costs of reports are limited to:

‘a report in a soft tissue injury claim which is from a medical expert who, save in exceptional circumstances;

a) has not provided treatment to the claimant;

(b) is not associated with any person who has provided treatment; and

(c) does not propose or recommend that they or an associate provide treatment’

An associate

‘in respect of a medical expert, any person whose business is linked to that expert or to any intermediary who commissions either the expert’s report or any proposed medical treatment and ‘associated with’ has the equivalent meaning’

The report costs of obtaining a medical report to advise upon the whiplash injury are:

  • First report from an expert £180
  • Further recommended report:
  • Orthopaedic surgeon £420 (to include review of medical records)
  • A&E Expert £360
  • GP (£180
  • Physiotherapist £180

The cost of any other expert not in the above discipline must be justified.

Part 36 Offers on Whiplash Injuries

To non-solicitors a “Part 36 offer” is meaningless. In simple terms it means that any party can make a pre-trial offer to settle the case either on the value of the compensation claimed or on liability issues. If a party rejects the Part 36 offer and the case proceeds to a trial, and that party who rejected the offer fails to do any better at trial, they will be faced with a cost penalty.

What has been happening recently with all the fixed costs and changes in the procedure on how to claim for whiplash injuries, the Defendant insurance companies have been making “pre-medical” Part 36 offers to settle a whiplash injury claim. The solicitor acting for the claimant cannot properly advise the client to accept or reject the Part 36 offer because the claimant has not been medically examined and therefore the severity of the whiplash injuries cannot be quantified. The only way to calculate the value of a whiplash injury is by considering the opinion from a medical expert who will advise upon the length of time the claimant is likely to recover from the whiplash injury. The reason why insurance companies make pre-medical offers is to get away with paying for a medical report and, more often than not, undervalue the claimant’s whiplash compensation award

Thus to stop or limit the ‘abuse’ of the Part 36 offers by Defendant insurance companies, the new amendments to the protocol prevent the drastic cost consequences should the claimant decide to undergo a medical examination post a Part 36 offer but find that the offer was reasonable after all. Thus the claimant now, without fear of having to pay any adverse costs, has a chance to be medically examined and seek advise from his/her whiplash injury solicitor on the amount of compensation likely to be awarded. At least this change in the CPR (Civil Procedure Rules) is to the advantage of the Claimant.

Further Reading on whiplash injury compensation claims

Whiplash and Road Traffic Accidents Claims

Whiplash Compensation Claims

Whiplash injury claims calculator

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