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Civil Liability Bill - first significant government concession sees whiplash definition moved into the Bill

The Civil Liability Bill returns to the House of Lords next Tuesday 12 June to begin its report stage.

Presumably in the hope of achieving greater consensus and therefore to improve the prospects of the Bill successfully passing through both Houses of Parliament, the government has made a climb down on a technical point concerning how and in what terms whiplash is defined, as well as another in relation to the procedure for changing that definition. We look at the significance of those and other minor government concessions in this update.

Background

After the committee stage on 15 May it was clear that Lord Keen on behalf of the government was to consider further certain key issues raised by peers in relation to Part 1 of the Bill on whiplash, the mostly keenly felt point concerning the definition of 'whiplash injury', linked to which are the issues both of how it is to be set out initially (whether in regulations or in the Bill itself) and then how it can be changed in the future should that be shown to be appropriate.

We reported the committee stage debate on Part 1 in this update and highlighted this issue in the section "Should the definition of whiplash be more fully set out in the Bill?"

Prior to the committee stage, the government had published the draft Whiplash Injury Regulations setting out the detail on certain aspects raised by the Bill: the detailed definition of whiplash; the tariff itself; how the uplift for exceptional circumstances would work being the main ones.

The Lib Dem peer Lord Marks, the Justice Spokesperson in the Lords for his party, had put forward during the debate in committee stage what he termed a potentially acceptable compromise of having an expanded definition of whiplash in the Bill itself, with the power to amend that definition in regulations. Lord Keen in response wanted more time to consider (as has now happened) though seemed attracted to the Marks proposal and so it has proved.

Government amendments on the definition

The idea of having an overarching definition in the Bill, with the detail set out in regulations which could then be swiftly changed if circumstances required that, has had to be dropped.

While there would continue to be Whiplash Injury Regulations in order to deal with the other issues that they currently extend to, the part of them (regulation 2) dealing with the definition of whiplash injury is to be dropped. Regulations would only arise on that issue if the government later wanted to amend the definition and those would be different regulations.

The Bill as originally presented said that whiplash injury meant "an injury, or set of injuries, of soft tissues in the neck, back or shoulder that is of a description specified in regulations made by the Lord Chancellor".

The new proposal is to define whiplash as "an injury of soft tissue in the neck, back or shoulder that is of a description falling within subsection (1A), but not including an injury excepted by subsection (1B)".

And then as to subsection (1A):

"An injury falls within this subsection if it is –

(a)    A sprain, strain, tear, rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder, or

(b)    An injury of soft tissue associated with a muscle, tendon or ligament in the neck, back and shoulder."

As to subsection (1B):

A injury is excepted by this subsection if –

(a)    It is an injury of soft tissue which is part of or connected to another injury, and

(b)    The other injury is not an injury of soft tissue in the neck, back or shoulder of a description falling within subsection (1A).

An alternative approach to the wording for whiplash

It is clear that the commitment to neck, back and shoulder taken from the overarching definition in the Bill as the injury sites to trigger the new scheme has been preserved and unsurprisingly so. It was unclear why the draft regulations (in a paragraph that will no longer be needed in the light of the approach now being adopted) had referred only to the "neck or back".

It seems clear that (subject to anything emerging from the debate next week to assist interpretation) the other changes in relation to definition are more of style than substance, though there is a clear change as to how the definition can be tweaked in the future.

It had been in the draft regulations of course that more detail as to the definition had been provided and it is that which we should now contrast with the amended Bill.

Both the former draft regulations and the amended Bill refer to the new scheme applying to "soft tissue" injury, and to the type of injury being "a sprain, strain, tear or rupture". The amended Bill adds in the fact that any "lesser damage" would also be included, presumably to make it clear that any more minor injury beyond the identified ones would not escape the scheme on that basis.

The regulations dealt with causation of the whiplash injury by saying that the injury in question was required to have been "caused by the backward, forward or sideways movement of the neck beyond the limit of its normal range of motion". This concept is no longer included in the proposed way forwards. While the injury under clause 1(3) of the Bill still needs to have been caused by driver negligence when the claimant is using or being carried on a motor vehicle on a road or other public place, the actual mechanism of how the whiplash injury was sustained as a result is no longer specified.

Both the former regulations and the amended Bill refer also to the affected parts of the body for the tariff to apply as consisting of a "muscle, tendon or ligament" so there is no change there.

The amended Bill goes beyond the former regulations to say that the scheme extends to include any soft tissue injury (presumably beyond any such injury to the neck, back or shoulder) which is "associated with" a muscle, tendon or ligament in the neck, back or shoulder.

While we will need to await the debate to understand the significance of this tweak, it maybe that what is being include within the tariff scheme here are cases where those other affected soft tissues are anatomically (in terms of the body's structures)linked to a muscle, tendon or ligament in the neck, back or shoulder.

It was previously understood that there would be injuries sustained in RTAs which were not whiplash injuries even though they were injuries to the neck, back and shoulder, because they fell outside the definition of the type of injury as they were not injuries to the soft tissues: for instance they were a bony injury.

It was also understood that injuries involving another body part such as injuries to the head or to a thumb or finger stood outside the tariff even where they involved the soft tissues. However, presumably again to add clarity, there is now for the first time a definition of what are said to be injuries "excepted by this subsection" as set out above at subsection (1B).

It is now expressly said that an injury is excluded from the new process if it is a soft tissue injury "which is part of or connected to another injury", and in addition that other injury is not an included category of injury (because it is not to the soft tissues to the neck, back or shoulder).

Changing the definition of whiplash

The original approach of course had been for the full definition of whiplash to be set out in regulations, so it could be amended promptly by the Lord Chancellor if the need arose. It was this power being given to the Lord Chancellor which had caused concern in the Lords.

The government's new approach is to add a new clause to the Bill after clause 1, entitled "Power to amend section 1" of the Act which changes the process substantially.

This would allow regulations from the Lord Chancellor to amend the definition, but would not permit the inclusion of a soft tissue injury apart from one "in the neck, back or shoulder". Before making those regulations, a process would be set up which would need to be followed.

This would involve the Lord Chancellor reviewing the existing definition and considering whether amendment was required, preparing and publishing a report of the review including giving reasons for the decision, a laying a copy of the report before parliament.

At that stage, before making regulations, there is a required list of consultees including the Lord Chief Justice and the Chief Medical Officer, as well as the Law Society and the Bar Council. Representative bodies from either side of the debate such as APIL, the ABI and FOIL are not included in the list though the Law Society as well as the Bar Council have been.

No review can be carried out before at least 3 years have passed since section 1 of the Act came into force and no further review can be carried out for another 3 years after the first review.

This is a very different approach to what was originally intended, and has no doubt been put forward following further discussions between peers and Lord Keen since committee stage in the hope of achieving consensus. The government may consider that this policy change is justified by increased prospects of achieving the principal reform included within the Bill.

The new process of changing the definition if it proves necessary to do so would at least exist, but it will be time-bound and will have a number of procedural hoops to jump through before it can realistically be expected to be exercised.

Review of the tariff

One area on which Lord Keen was challenged at committee was in relation to the level of the tariff, with Lib Dem peers in particular wanting the main thrust of the reform to be diluted by using the current Judicial Studies Board figures as the tariff rather than the government's figures. Lord Keen had stood firm in response.

Perhaps as another pointer towards building consensus, albeit more limited a move on this occasion, there is a further government amendment adding an additional clause after clause 2 of the Bill.

This requires the Lord Chancellor to carry out a review of the regulations which set out the tariff every 3 years. Nothing is said in the new amendment from Lord Keen as to the criteria against which the review would be carried out and this will presumably feature in the debate in contributions from opposition peers.

A report of each review would have to be published and again laid before parliament.

Exceptional circumstances uplift

This too featured in the debate and Lord Keen has responded with another limited amendment.

The issue is what the requirements should be for the uplift on damages to apply, and how exceptionality should be defined. The original definition referred to the test being that "the circumstances giving rise to that degree of pain, suffering and loss of amenity are exceptional".

The new draft removes the phrase quoted above and replaces it with 2 alternatives, either of which would fulfil the definition. They are:

(i) the whiplash injury is, or one or more of the whiplash injuries are, exceptionally severe, or

(ii) where the person's circumstances increase the pain, suffering or loss of amenity caused by the injury or injuries, those circumstances are exceptional

This change referring either to the injury itself, or to its effects on the claimant, can be thought of as adding detail to the existing definition, but again may help in building the consensus needed.

Insurers passing on savings

Beyond having the definition of whiplash within the Bill itself which has now been dealt with by the latest amendments, the next issue most frequently dealt with at committee was the belief of some peers that more was needed within the Bill to ensure that insurers' savings reached motorists. Lord Keen indicated that he would give further thought on the point.

It is clear that there is nothing on the point in the amendments currently tabled by Lord Keen. We shall have to wait to see whether the position changes before Tuesday or subsequently. We shall also have to wait to see what other amendments are tabled by peers in relation to Part 1 of the Bill

Other matters

The government's response to the Justice Committee's report on the effects of an increase to the Small Claims Track is expected this month or soon afterwards.

In the meantime, responding to a written parliamentary question earlier this week, MoJ Minister Rory Stewart maintained the usual determined line of the government not being deflected from its aims by events.

He said that intentions remained in place to implement the measures set out in the Bill as well as the changes to the SCT by April 2019, as well the intention to publish the post-implementation review of Part 2 of LASPO by the end of this year.

As usual, we await developments.

Contact

For more information please contact Simon Denyer, Strategic Legal Development Consultant DD 0161 604 1551 Simon.denyer@dwf.law

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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