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What Are the Exceptions to the New Whiplash Reform?

on Wednesday, 13 April 2022.

The new changes are designed for injured parties to bring the claim themselves via an online portal without needing legal representation. This includes claims where liability is in dispute.

It has been almost a year now since the new Whiplash Injuries Regulations came into force. The statistics show that the number of claims made are down by around two thirds. This means that around two thirds of people who would previously have brought a claim are now not doing so. Even more concerning is that the statistics strongly suggest that claimants, who were unrepresented, under-settled their claim.

There are, however, some exceptions where you will not need to submit your claim yourself on the Official Injury Claims (OIC) Portal and can instruct a solicitor to represent you, and your legal costs will be paid.

A claim does not fall under the new Whiplash Injuries Regulations if:

  • the road traffic accident happened before 31 May 2021
  • the road traffic accident happened outside England and Wales. You can therefore instruct a solicitor if the accident happened in Scotland, Northern Ireland, Channel Islands, Isle of Man or even Europe
  • your injury is worth more than £5,000 or the total value of your claim, including your financial losses (vehicle related losses, loss of earnings, treatment costs etc) is worth more than £10,000
  • you are a 'vulnerable road user' - you will be treated as 'vulnerable' if at the time the accident, you were:
    • using a motorcycle
    • a pillion passenger on, or a passenger in sidecar attached to, a motorcycle
    • using a wheelchair, a powered wheelchair or a mobility scooter
    • using a bicycle or other pedal cycle
    • riding a horse
    • a pedestrian
  • the person who is at fault is not a road user. For example, if you claim against the owner of an animal that escapes onto the highway causing an accident or a claim against a highway authority under the Highways Act 1980.
  • your accident was with a driver who has not been identified ie ‘hit and run’. You will therefore have to submit your claim to the Motor Insurers Bureau (MIB).
  • you or the person you are pursuing your claim against (Defendant) acts as a personal representative of a deceased person
  • you are making a claim on behalf of a child
  • you or the person at fault is a protected party ie a person who lacks capacity to conduct the proceedings under the Mental Capacity Act 2005
  • you are bankrupt
  • the person at fault’s vehicle is registered outside the United Kingdom (England, Wales, Scotland & Northern Ireland)
  • you can argue the injury was caused by lack of health and safety procedures. For example, if the accident happened whilst you were working, you can claim as an employee against your employer even though on face value it looks like a road traffic accident. It may be that there has been a breach of duty related to, for example, a failure to risk assess, train, supervise or provide you with suitable work equipment.

If any of the above exceptions applies to you, or for further advice on whether your claim falls outside of the new Whiplash Reform, please contact Ruth Nguyo on 0117 992 9711 or Nicola Bickham on 0117 3145 330 in our Personal Injury team. Alternatively, please complete the form below.

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