Compensation for pain and suffering in whiplash cases is “derisory and unfair”, says CILEX

3 April 2024

Compensation awarded for pain, suffering and loss of amenity (PSLA) in whiplash cases is “derisory and unfair” and fails to fully compensate claimants, says CILEX (the Chartered Institute of Legal Executives).

The current tariff system which splits whiplash cases into ‘whiplash only’ and ‘whiplash plus minor psychological injuries’ is not a suitable approach, CILEX argues. Instead, where any psychological injury is present, “the injury should escape from the tariff” given the complexity surrounding such injuries and the potential impact on claimants, their financial position and family members.

It also argued that whiplash injuries lasting over three months were likely to be complex and continue indefinitely and as such should also be excluded from the tariff.

Responding to a call for evidence by the Ministry of Justice, as part of its statutory review of the whiplash tariff, CILEX highlights that for those whose injury duration was less than three months, the uplift in compensation where there is also a psychological injury stood at “a mere £20”.

CILEX says that if the government “is adamant that the tariff’s structure regarding the inclusion of minor psychological injury should be retained”, then a 10% uplift should be standardised across all injury durations – higher than now. This would reflect the complexity of psychological injury and be “more representative of current legal practice where an adjustment is made when multiple injuries occur”.

The response also raises concerns that the possibility of differing prognoses for physical and psychological injuries is not reflected in the tariff.

CILEX has over 2,700 members working in personal injury. They reported in a CILEX survey that the volume of whiplash settlements has fallen since the introduction of the tariff. Members raised concerns about law firms retreating from personal injury work “as whiplash claims become uneconomic to pursue”.

Despite the number of claims falling significantly since the Official Injury Claim portal was introduced three years ago, the government’s stated rationale for its introduction – the reduction of insurance premiums – has not materialised, with motor insurance premiums 34% higher compared to the previous 12-month.

CILEX president Emma Davies commented: “Psychological injury can be complex, may be longer lasting than the accompanying physical injury and can have a significant impact on a claimant’s ability to work and on their relationships with family. This is not reflected in current compensation levels which are set at a derisory level.

“Including psychological injuries as part of the whiplash tariff structure is insufficient, risking a serious undercompensating of injured parties. Where verifiable psychological injury is experienced alongside whiplash, we would like to see cases excluded from the tariff system altogether.”

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ENDS

For further information, please contact:

Louise Eckersley, Black Letter Communications on 0203 567 1208 or email at [email protected]

Kerry Jack, Black Letter Communications on 0203 567 1208 / 07525 756 599 or email at [email protected]

Notes to editors:

CILEX (The Chartered Institute of Legal Executives) is one of the three main professional bodies covering the legal profession in England and Wales. The approximately 18,000-strong membership is made up of CILEX Lawyers, Chartered Legal Executives, paralegals and other legal professionals.

CILEX pioneered the non-university route into law and recently launched the CILEX Professional Qualification (CPQ), a new approach to on-the-job training that marries legal knowledge with the practical skills, behaviours and commercial awareness needed by lawyers in the 2020s.

The CPQ is a progressive qualification framework that creates a workforce of specialist legal professionals, providing a career ladder from Paralegal through to Advanced Paralegal and ultimately full qualification as a CILEX Lawyer. CILEX Lawyers can become partners in law firms, coroners, judges or advocates in open court.

CILEX members come from more diverse backgrounds than other parts of the legal profession:

• 77% of its lawyers are women
• 16% are from ethnic minority backgrounds
  • 8% are Asian or Asian British
  • 5% are Black or Black British
  • 3% are from a mixed ethnic background
• 85% attended state schools
• 33% are the first generation in their family to attend university
• Only 3% of its members have a parent who is a lawyer.

CILEX members are regulated through an independent body, CILEx Regulation. It is the only regulator covering paralegals.