In the Civil Liability Bill the Government (the Bill) plans to introduce a fixed tariff for “whiplash injuries” and in addition plans to amend the court rules to increase the small claims track limit for personal injury cases from £1,000 to £5,000 for all road traffic accident claims, and to £2,000 for all other personal injury claims. This is to tackle “the continuing high number and cost of whiplash claims”, the “perceived compensation culture” and fraudulent whiplash claims. The increase of the small claims track limit is important because successful claimants are not entitled to recovery of their costs, whereas successful claimants in cases above the small claims track limit are. As legal costs are not recoverable in the small claims track limit, lawyers do not have an involvement in the process. The small claims track limit applies to the value of the injury element of the claim. Thus currently an injury worth £900 but with an additional claim for loss of earnings of £1,200 would be within the small claims track limit. A £1,100 injury claim but with no claim for lost earnings would not be a small claim.
The Ministry of Justice originally intended to implement the reforms (the Bill and the small claims track limit changes) on 1 April 2019, however in response to a report by the Justice Select Committee on the small claims track limit for personal injury cases it agreed to delay the settling up of an extended lawyer-less process by a year to April 2020.
Government’s response to the consultation on reforming the “Whiplash” Claims Process made no reference to vulnerable road users – i.e. pedestrians, cyclists and motorcyclists. The focus was upon whiplash and fraudulent claims arising from occupants of motor vehicles and failed to consider the complexity of claims by vulnerable road users in terms of liability, injury types and their vulnerable status. Campaigning groups, in particular Cycling UK, have pointed out the adverse impact that the reforms would have in relation to vulnerable road users.
Even the body representing the interests of the insurance industry, the ABI, are content that the definition used in the reforms should not be extended beyond “occupants of a motor vehicle” as they do not see vulnerable road users as part of the “rampant compensation culture”. Around 85% of road traffic accident personal injury claims are for whiplash related claims by occupants of motor vehicles. Whiplash claims by vulnerable road users are extremely rare. Typically the more minor type injuries for cyclists include fractured wrists, collar bones or ribs. Such injuries cannot be faked.
The proposal to increase the small claims track limit to £5,000 for all road traffic accident claims will affect 70% of cyclist personal injury claims and a similar percentage of motorcyclists’ claims. Vulnerable road users groups including Cycling UK have strongly argued that vulnerable road users’ personal injury claims should be excluded from the £5,000 small claims track limit increase and treated in the same way as other personal injury claims. The Justice Select Committee has also recommended that vulnerable road users should be excluded from the higher £5,000 small claims track limit. If the small claims track limit increase for vulnerable road users was restricted to £2,000 this would only impact around 15% of cyclist`s claims and around 30% of motorcyclist`s claims.
In its response to the Justice Select Committee report, the Government indicated that it was “sympathetic to the argument” in relation to vulnerable road users but “it needs to ensure that any exceptions are justified” and is “considering the matter and will return to it in due course”.
The consultation documents stated that the “Government considers that most minor personal injury cases are straightforward enough to be brought without the need for legal representation”, and that “Most minor personal injury claims result from road traffic accidents, in the vast majority of which the issues of causation and liability are admitted early in the process – those claims which proceed to court hearings do so in order to settle issues of quantum.” This generalised statement is not one which would be agreed by representatives of claimants and certainly does not apply to vulnerable road users. Regularly insurers will raise arguments in relation to liability i.e. allegations such as a pedestrian not keeping a proper look out when crossing a road, a cyclist carelessly filtering through traffic or failing to wear a cycle helmet. In the small claims track lawyers are excluded from the process and cases are brought by litigants in person. Vulnerable road users would therefore encounter significant problems pursuing claims against insurers as they are likely to have no knowledge of the law and the claims process. There would thus be a significant inequality of arms.
The Government has attempted to draw parallels with various European countries where generally lawyers have less involvement in the claims process. Yet it failed to acknowledge that in European jurisdictions (save for 5 countries), vulnerable road users are given additional legal protection through either a strict or presumed liability system e.g. a motorist must prove that they were not negligent if they collide with a vulnerable road user, whereas in England & Wales a vulnerable road user has the burden of proving their case.
The Government needs to quickly confirm that claims by vulnerable road users should not be treated in the same way as whiplash claimants and caught by the higher £5,000 small claims track limit increase. Failure to differentiate these types of claimants would result in significant injustice and unfairness. Vulnerable road users should not be penalised by a very small proportion of fraudulent whiplash claimants.