Kerry Underwood

THE FUTURE OF PERSONAL INJURY

with 6 comments


The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

Civil Liability Act

The Civil Liability Act 2018 has received Royal Assent and is expected to come into force in 2020.

Section 1 defines a whiplash injury as 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 but an injury is taken out of that description if it is a soft tissue injury which is part of or connected to another injury and that other injury is not a soft tissue injury in the neck, back or shoulder.

It only applies when the person suffering a whiplash injury is using a motor vehicle other than a motorcycle on a road or other public place in England or Wales, or is being carried in or on a motor vehicle other than a motorcycle while another uses the vehicle on a road or other public place in England or Wales.

Thus pedestrians, cyclists and motorcyclists are excluded from the provisions of the Act, but a passenger in a motor vehicle is included within the Act.

The provisions cover a person getting into, or getting out of, a motor vehicle other than a motorcycle.

Section 3 provides that the Lord Chancellor may specify in regulations a tariff for whiplash injuries which do not exceed, or are not likely to exceed, two years, or would not have exceeded two years but for the claimant’s failure to take reasonable steps to mitigate its effect.

The tariff shall also deal with minor psychological injuries suffered by the claimant on the same occasion as the whiplash injuries.

Pre-medical report settlements are prohibited, but enforcement and punishment is left to the relevant regulator, and generally for solicitors that will be the Solicitors Regulation Authority.

Breach of the provision does not make a person guilty of a criminal offence and nor does it give rise to a right of action for breach of statutory duty and nor is any agreement made to settle a whiplash claim in the absence of a medical report thereby void or unenforceable.

The whiplash tariff is likely to be introduced in 2020 and the figures will be in the regulations, but I set out below the figures previously proposed by this Government.

 

Injury

Duration

2015 average payment for PSLA – uplifted to take account of JCG uplift

(industry data)

Judicial College Guideline (JCG) amounts (13th edition) Published September 2015 New tariff amounts
0–3 months £1,750 A few hundred pounds to £2,050 £225
4–6 months £2,150 £2,050 to £3,630 £450
7–9 months £2,600 £2,050 to £3,630 £765
10–12 months £3,100 £2,050 to £3,630 £1,190
13–15 months £3,500 £3,630 to £6,600 £1,820
16–18 months £3,950 £3,630 to £6,600 £2,660
19–24 months £4,500 £3,630 to £6,600 £3,725

 

 

Small Claims Limit Increase

This is not dealt with in the Civil Liability Act, and does not require primary legislation.

The Government proposes to increase the small claims limit in personal injury work to £5,000 for road traffic accident claims and to £2,000 for all other types of claims.

The current limit is £1,000.

It should be noted that in fact the current limit is £1,000 for general damages and £10,000 generally, and therefore either general damages must exceed £1,000, or the total claim must exceed £10,000.

It will be seen from the above proposed whiplash tariff that all whiplash claims of two years or less suffered by those in or on motor vehicles, except motorcycles, fall under the proposed new general damages limit of £5,000, and therefore the total value of a claim will need to exceed £10,000 to take it out of the small claims track.

Let us assume a two year whiplash, where the general damages are fixed by the tariff at £3,725.

Special damages total £5,000.

The total is thus £8,725.

That is still a small claim, as neither the £5,000 general damages small claims limit, nor the £10,000 ordinary small claims limit is exceeded.

Thus, statistically, the vast majority of road traffic accidents will be small claims.

It is expected that the increase in the small claims track will come in at the same as the whiplash tariff, and that is expected to be in 2020.

 

Fixed Costs in All Claims Up To £100,000

In his July 2017 Review of Civil Litigation Costs: Supplemental Report – Fixed Recoverable Costs – Lord Justice Jackson recommended that Fixed Recoverable Costs be introduced for all claims of all kinds where the damages do not exceed £100,000.

The proposed figures are set out in Table 7.1 of the Report, and I set them out below:-

Stage (S) Band 1 Band 2 Band 3 Band 4
S1 Pre-issue or pre-defence £1,400 + 3% of £4,350 + 6% of £5,550 + 6% of £8,000 + 8% of
investigations damages damages damages damages
S2 Counsel/ specialist lawyer £1,750 £1,750 £2,00012 £2,00013
drafting statements of case
and/or advising (if
instructed)
S3 Up to and including £3,500 + 10% of £6,650 + 12% of £7,850 + 12% of £11,000 + 14% of
CMC damages damages damages damages
S4 Up to the end of £4,000 + 12% of £8,100 + 14% of £9,300 + 14% of £14,200 + 16% of
disclosure and inspection damages damages damages damages
S5 Up to service of witness £4,500 + 12% of £9,500 + 16% of £10,700 + 16% of £17,400 + 18% of
statements and expert damages damages damages damages
reports
S6 Up to PTR, alternatively £5,100 + 15% of £12,750 + 16% of £13,950 + 16% of £21,050 + 18% of
14 days before trial damages damages damages damages
S7 Counsel/ specialist lawyer £1,250 £1,500 £2,000 £2,500
advising in writing or in
conference (if instructed)
S8 Up to trial14 £5,700 + 15% of £15,000 + 20% of £16,200 + 20% of £24,700 + 22% of
damages damages damages damages
S9 Attendance of solicitor15 £500 £750 £1,000 £1,250
at trial per day16

 

Stage (S) Band 1 Band 2 Band 3 Band 4
S10 Advocacy fee: day 1 £2,750 £3,000 £3,500 £5,000
s11 Advocacy fee: £1,250 £1,500 £1,750 £2,500
subsequent days17
S12 Hand down of £500 £500 £500 £500
judgment and consequential
matters
S13 ADR: counsel/specialist £1,200 £1,500 £1,750 £2,000
lawyer at mediation or JSM
(if instructed)
S14 ADR: solicitor at JSM or £1,000 £1,000 £1,000 £1,000
mediation
S15 Approval of settlement £1,000 £1,250 £1,500 £1,750
for child or protected party
Total: (a) £30,000 (b) (a) £19,150 (a) £33,250 (a) £39,450 (a) £53,050
£50,000, (c) £100,000 (b) £22,150 (b) £37,250 (b) £43,450 (b) £57,450
damages18
(c) £29,650 (c) £47,250 (c) £53,450 (c) £68,450

 

These changes are also expected to come in at the same time as the increase in the personal injury small claims limit and the whiplash tariff, that is 2020.

 

Driverless Cars

As it stands, driverless cars will be legal from 1 January 2021 and most of the major car producers have announced that they will shortly stop making traditional cars and Ford has announced that it is proceeding straight to Level 4 and Level 5 driverless cars, that is it will not bother producing any transitional hybrid cars.

Level 4 cars are for use in city areas and Level 5 cars are for full autonomy in any driving conditions or locations.

Virtually all statistics show that over 90% of road traffic accidents are caused by driver error. Take driving out of the equation and that should mean 90% fewer accidents, 90% fewer road traffic accident claims and 90% fewer road traffic accident fee earners.

In relation to the remaining accidents Volvo has already announced that it will cover all loss involving any of its driverless vehicles and that example is expected to be followed by most, if not all, motor manufacturers.

Expectations are that the early take up of driverless cars will be huge, but then may tail off, but it is expected that road traffic accidents will reduce by 50% by 2030, and by 90% by 2040 when it is expected that traditional cars will be banned.

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Written by kerryunderwood

January 4, 2019 at 9:04 am

Posted in Uncategorized

6 Responses

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  1. Is this the end of personal injury Kerry?

    Kevin

    January 4, 2019 at 9:11 am

    • No, it is not the end, but it will be different and clearly the firms doing only bulk low value work will have to change their business model. I suspect that the tariff scheme will prove to be politically unacceptable once children are injured by a drunk driver and get virtually no damages, for example.

      My advice is to keep doing personal injury work, but to diversify in to other areas of law as well.

      Kerry

      kerryunderwood

      January 4, 2019 at 12:01 pm

  2. Another fine piece for many to consider when planning their ‘futures’ which may well be best served within other areas?

    Roland Waters MIMI

    January 4, 2019 at 11:53 am

    • Thank you. Firms should certainly develop areas other than just personal injury – but that is common sense anyway – it is the old saying about not putting all of your eggs in one basket.

      Specialising in one area of law is always courting trouble.

      Kerry

      kerryunderwood

      January 4, 2019 at 11:58 am

  3. Interesting that claims will be brought against manufacturers rather than another driver if involved in an RTA once autonomous cars are introduced. I wonder if the manufacturers will start to lean on the government for reduced payouts like the insurance sector did. I also wonder if, as you state, fully driverless cars will be the only cars on the road by 2030 does happen. As per Back to the Future 2 I am still waiting for my hover board.

    Richard Ferguson

    January 8, 2019 at 9:57 am

    • Richard

      Most manufacturers are stating that they will act as insurers and so people with driverless cars will not have to pay any insurance, and for all intents and purposes it will be a no fault liability basis. Time will tell, but the manufacturers’ message is that driverless cars are so safe that conventional insurance becomes unnecessary.

      As you indicate any accident is likely to be a manufacturing fault – it cannot be driver error – so the manufacturers may as well insure themselves, as they are allowed to do.

      Interesting times ahead!

      Kerry

      kerryunderwood

      January 8, 2019 at 11:38 am


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