SOFT TISSUE INJURIES: CONSULTATION IN DETAIL
I deal with this subject in detail in my forthcoming book – Personal Injury Small Claims, Portals and Fixed Costs available from Amazon here.
The paper can be accessed and responded to here – consultation ends on 6 January 2017 at 5.30pm.
The Government proposes either to remove compensation entirely for pain, suffering and loss of amenity in “minor” road traffic accident related soft tissue injury cases, or to fix such damages at £400.00, or £425.00 if there is psychological injury involved as well.
The detail appears in Part 2 – pages 15 – 19 of the paper – Reducing the number and cost of minor RTA related soft tissue injury claims, but with reference to Part 1 – Identifying the issues and defining RTA related soft tissue injuries.
The Government expresses no preference between the two options and therefore complete removal of general damages for minor soft tissue in RTA cases is still very much an option.
The Ministry of Justice expresses the view that “the level of compensation awarded to claimants is out of all proportion to the level of pain and suffering actually experienced by most people following a low speed RTA. “
I was unaware that the current Lord Chancellor, who we know is not a lawyer, is a doctor.
The paper refers to the Judicial College Guidelines and obviously the Government statement is a direct criticism of the Judiciary for setting the figures in the guidelines too high and for awarding too much when matters go to court.
Personal injury lawyers and the public generally should be under no illusion. These arguments will be used to bring general damages down across the board, not just in soft tissue injury matters.
The theory is that this will benefit everyone by reducing motor premiums. That theory completely removes the point of insurance. The concept of insurance is that everyone pays a certain sum and if they are unlucky enough to suffer a misfortune, burglary or injury or whatever, then they get paid out from that common fund.
If that concept is undermined, then there is no point in any insurance of any kind – Devil take the hindmost.
The paper has the nerve to say that having a fixed sum of £400.00, or £425.00, will “protect against under settlement by making claimants aware in advance of the appropriate level of compensation that they are due.”
Please all send me details of the cases where you have settled general damages in a whiplash claim for under £400.00.
The questions in relation to these proposals are:-
“Question 5: Please give your views on whether compensation for pain, suffering and loss of amenity should be removed for minor claims as defined in Part 1 of this consultation?
Please explain your reasons.
Question 6: Please give your views on whether a fixed sum should be introduced to cover minor claims as defined in Part 1 of this consultation?
Please explain your reasons.
Question 7: Please give your views on the government’s proposal to fix the amount of compensation for pain, suffering and loss of amenity for minor claims at £400 and at £425 if the claim contains a psychological element.
Please explain your reasons.”
For the first time a definition has been given of what the Government considered to be “minor” claims.
Again two options are put forward:-
- Injury duration of up to and including six months;
- Injury duration of up to and including nine months.
Here the Government does express a preference for the six month option.
The Government states that the average amount of compensation at present for an RTA related soft tissue injury of up to and including six months, with or without psychological claims, is around £1,800.00 and in relation to an injury of up to nine months around £2,100.00.
Separately the Government also proposes that all claims with a prognosis period of 12 months or under would automatically transfer to the small claims track, regardless of whether the measure to increase the small claims limit was implemented at the same time. (Paragraph 17).
The definition of soft tissue is the one in paragraph 16(A) of the RTA Portal, that is:-
“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 second in significance to the physical injury.”
Generally it should be noted that as by definition an award of £400.00 or £425.00 is below the current small claims limit, let alone the proposed increased one, such a matter will be a small claim unless special damages bring the total above the ordinary small claims limit, which is currently £10,000.00.
Thus where there is a whiplash injury of up to 6 months duration, the small claims limit is £10,000.00, not £5,000.00.
One option is that no report can be obtained until six months after the injury, so as to allow the examining doctor to see whether or not there are ongoing problems. If there are then the matter does not come within this particular fixed damages scheme:-
“45. The ‘diagnosis approach’ could be used if the government decided to proceed with the option of removing compensation for PSLA from minor claims. This option would require claimants to wait until the end of the prescribed period (e.g. six months) before obtaining a supporting medical report through the MedCo Portal. An examination at this point would enable the medical expert to assess whether the claimant was still suffering from pain or other symptoms related to injuries sustained in their earlier RTA. The medical report would then be used to decide whether the claimant was entitled only to claim for non-PSLA losses, or was alternatively eligible for the new fixed tariff compensation scheme for more significant injuries.
- In order to control costs associated with the claim, only the cost of the six month medical report would be recoverable. If the claimant chose to seek a medical report any earlier than this, the cost of that earlier report would not be recoverable. In addition, the requirement to have a medical examination at a specific point may have a positive impact on the practice of claims being brought at the end of the limitation period.”
The Government then suggests, at paragraph 48, that there would be circumstances in which waiting six months would not be helpful to a claimant but gives no indication as to how a court would judge whether or not it had been reasonable for a claimant to obtain such a report:-
“48. However, there could be circumstances in which waiting six months would not be helpful to a claimant. A requirement for the claimant to pay for an earlier report (if one were needed before six months) could be viewed as disproportionate for claimants seeking necessary rehabilitation or who are unable to work and are seeking payment for loss of earnings given that such a report may in any event be required to evidence the claim for these losses (which remain recoverable). In addition, as well as deterring minor, exaggerated and fraudulent claims, such a requirement could also act as a disincentive for genuinely injured claimants.”
It is very obvious that the Ministry of Justice hopes that if a claimant has to wait six months before doing anything at all, then they will give up and not bother making any claim.
It is a sort of a reverse limitation period.
The Government also considers the prognosis approach, essentially the current process but has this to say:-
“53. The difficulty with this approach arises from the potential for pressure to be applied to inflate prognosis periods to just beyond the period defined as covering ‘minor’ road traffic related soft-tissue injury claims. For example, if the definition of ‘minor’ is set at up to and including six months, there is a question as to how many claims would end up with a prognosis period of seven months, thereby qualifying for compensation under the new tariff system. As noted above, the analysis of management information by MedCo will be an important safeguard in this area. The introduction of a tariff for claims as set out in Part 3 of this consultation document will also be a potential mitigation against such claims inflation.”
Thus the Ministry of Justice’s view is that the judges and the Judicial College have got it all wrong in valuing soft tissue injuries and that the doctors will simply lie and say that the prognosis period is seven months, so as to escape the fixed damages of £400.00/£425.00.
The questions in relation to six months/nine months are at questions 3 and 4:-
“Question 3: The government is bringing forward two options to reduce or remove the amount of compensation for pain, suffering and loss of amenity from minor road traffic accident related soft tissue injury claims Should the scope of minor injury be defined as a duration of six months or less?
Please explain your reasons, along with any alternative suggestions for defining the scope.
Question 4: Alternatively, should the government consider applying these reforms to claims covering nine months’ duration or less?
Please explain your reasons along with any alternative suggestions for defining the scope.”
The questions in relation to how medical evidence should be obtained are at questions 8 to 10:-
“Question 8: If the option to remove compensation for pain, suffering and loss of amenity from minor road traffic accident related soft tissue injury claims is pursued, please give your views on whether the ‘Diagnosis’ approach should be used.
Please explain your reasons.
Question 9: If either option to tackle minor claims (see Part 2 of the consultation document) is pursued, please give your views on whether the ‘Prognosis’ approach should be used.
Please explain your reasons.
Question 10: Would the introduction of the ‘diagnosis’ model help to control the practice of claimants bringing their claim late in the limitation period?
Please explain your reasons and if you disagree, provide views on how the issue of late notified claims should be tackled.”
The consultation ends on 6 January 2017.
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