Can You Make a Whiplash Claim?

If you have suffered from whiplash following an accident which was not your fault, you may be able to claim compensation.

Whiplash injuries can cause pain, discomfort and can leave you out of pocket through medical expenses and time off work. Making a whiplash claim can help to compensate you for the suffering and costs resulting from your injury.

With thousands of road traffic accidents on UK roads each year, many causing injury, making a whiplash claim is commonplace. Still, despite changes in legislation and the introduction of an online portal designed to revolutionise how road traffic accident claims are made, this process can often still be complex. This is because the prospective claimant must be able to prove certain legal matters to establish the right to compensation.

The following guide for claimants looks at various aspects of whiplash claims, including what you must prove to be able to successfully recover compensation for your injury and how much you could potentially recover in compensation if your claim succeeds.

What is a whiplash claim?

A whiplash claim is a claim made by an injured party who has been involved in a road traffic accident for which they were not to blame, either as a driver or a passenger, and they have sustained a soft tissue type injury or combination of injuries to their neck, shoulders and/or upper back. Any injury or combination of injuries could consist of a sprain, strain, tear, rupture or lesser damage to either a muscle, tendon or ligament in these areas.

Whiplash injuries typically occur when occupants of vehicles are struck from behind, causing a sudden movement or jolting of the head. Sometimes likened to the crack of a whip, the rapid movement of the head and neck both forwards and backwards, or even sideways, causes the ligaments and tissues to become stretched and painfully damaged.

What are whiplash injuries?

‘Whiplash’ describes a soft tissue neck injury caused by the sudden movement of the head forwards, backwards or to the side. The most common cause of whiplash is road traffic accidents but these types of injuries can result from anything that makes the ligaments and tendons in the neck suddenly become stretched or damaged – for example as slips and trips.

A variety of symptoms are associated with whiplash and can typically include:

• Tenderness, pain or stiffness in the neck or difficulty moving head
• Pain in the shoulders and arms
• Pins and needles in your arms
• Muscle spasms
• Dizziness
• Headaches
• Memory loss
• Poor concentration, tiredness or irritability

Whiplash symptoms can take between 6 to 12 hours to develop, or sometimes longer, as it can be experienced differently by different people.

There is no set timeframe for recovery from a whiplash style injury, where the symptoms from a minor injury could resolve within a matter of a few short days or weeks, while symptoms relating to a more serious injury could have long-lasting effects, taking several months or even longer to resolve. In the most serious cases, you may be left with permanent and recurring symptoms that could seriously impact your quality of life.

Who can make a whiplash claim?

If you have been involved in a road traffic accident that was not your fault and sustained an injury to your neck, shoulder(s) and/or upper back, you may be eligible to make a whiplash claim. This could be if you were driving at the time, but the accident happened as a result of the negligent driving or actions of another driver. It could also include where you were a passenger in a vehicle, where either the driver of that vehicle was to blame for the accident or where the accident happened because of the negligence of a third party driver.

How to make a whiplash claim using the Official Injury Claim service

The Official Injury Claim online service is designed to allow claimants to bring low-value claims without the need for legal representation.

The service is free to use. Backed by the Ministry of Justice, the OIC portal handles personal injury claims of up to £5,000, or up to £10,000 when you include other financial losses arising out of the accident, other than damages for your whiplash injury.

To be eligible to use the whiplash portal, the following must apply:

• As the claimant, you sustained the injury while driving or a passenger in a vehicle
• You are over 18 years old
• There must be an identifiable, at-fault party
• The incident was England or Wales
• The incident took place on or after 31 May 2021

You would not be able to use the whiplash portal if:

• The at-fault party was driving a vehicle with a foreign registration
• The incident was a hit and run accident
• The at-fault party was not another road user
• The injury resulted from a breach of the Health and Safety at Work Act

Under the new rules for whiplash claims, legal costs for small claims are now deducted from compensation awards up to £5,000. This means claimants bringing a small claim are no longer allowed to recover their costs from the other side.

While the online portal was designed to help ensure that the new service provides a fair and accessible system, when bringing a low value whiplash claim without the help of a solicitor, many claimants will still opt to be represented to help them successfully navigate this often tricky process. Many solicitors offer a low fixed fee to represent prospective claimants using the online whiplash claims portal.

What will you need to prove a whiplash claim?

You must have a medical report that confirms your injuries and supports your claim. Insurers cannot make an offer for whiplash injuries before a medical examination has taken place.

When it comes to negligence, all drivers owe a duty of care to ensure that their actions do not cause injury to other road users and/or damage to property. As such, you will have the basis of a claim in negligence if you are able to show that the carelessness, inattention or recklessness of the proposed defendant caused the accident that you were involved in.

In many cases, the insurers will form a view as to where responsibility lies for the accident based on the accounts given by both drivers when reporting the accident. This means that a potential claim can often proceed on the basis of an admission of liability.

However, where liability remains in dispute, the matter will need to proceed to court for a judge to decide where responsibility lies. For this, the judge will need to see evidence, from photographs and engineers reports to witness accounts of how the accident happened. You will also need a report from an independent medical expert to be able to recover compensation for your injury, together with proof of any other losses sustained as a result of the accident.

How much compensation can I claim?

The amount of compensation that you could get for a whiplash claim will depend on the severity of your injury and the extent of any financial losses sustained.

Your whiplash injury

You will be awarded a sum of money for the pain, suffering and loss of amenity caused by your whiplash symptoms. However, following the recent changes in legislation, where you have sustained a whiplash injury in a road traffic accident in England and Wales, and the duration of the injury to either your neck, shoulder(s) and/or back is likely to be for 2 years or less, general damages will be assessed with reference to a fixed tariff regime.

Under the regime, there are two tariff tables. Table A sets out the tariff sum payable in relation to one or more whiplash injuries. Where more than one whiplash injury is sustained, the injury of the longest duration determines which bracket applies. Table B sets out the tariff sum payable in relation to both one or more whiplash injuries, together with one or more minor psychological injuries. This is because, in addition to whiplash injuries, prospective claimants often suffer psychological symptoms, such as disrupted sleep patterns, nightmares, flashbacks and travel anxiety following road traffic accidents.

The Table A applicable fixed tariff rates, as based on the duration of injury, are as follows:

• Not more than 3 months: £240
• More than 3 months, but no more than 6 months: £495
• More than 6 months, but no more than 9 months: £840
• More than 9 months, but no more than 12 months: £1,320
• More than 12 months, but no more than 15 months: £2,040
• More than 15 months, but no more than 18 months: £3,005
• More than 18 months, but no more than 24 months: £4,215

The Table B applicable fixed tariff rates, as based on the duration of injury, are as follows:

• Not more than 3 months: £260
• More than 3 months, but no more than 6 months: £520
• More than 6 months, but no more than 9 months: £895
• More than 9 months, but no more than 12 months: £1,390
• More than 12 months, but no more than 15 months: £2,125
• More than 15 months, but no more than 18 months: £3,100
• More than 18 months, but no more than 24 months: £4,345

Where there are ‘exceptional circumstances’, you may be awarded an additional sum not exceeding 20% more than the tariff sum. Your injuries may also fall outside the fixed tariff scheme, for example, if you have suffered a severe whiplash or psychological injury. If this is the case, the value of your claim will instead be assessed with reference to the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (JCGs).

The JCGs set out the range of awards that the insurers or courts are likely to make based on the nature and severity of the injury or injuries in question. For example, for cases involving a moderate soft tissue injury where the period of recovery has been fairly protracted, say up to 5 years, and where there remains an increased vulnerability to further trauma or permanent nuisance type symptoms, the award could be between £7,890 to £13,740.

Your financial losses

When it comes to any financial losses, as long as you can prove that you have suffered additional loss as a result of the accident, over and above the whiplash injury alone, you will be awarded a separate sum of compensation. This is referred to as special damages.

A claim for special damages could include, for example, any or all of the following:

• loss of earnings: if you were unfit for work because of your whiplash injury
  gratuitous care: to represent the cost of any personal care and assistance provided for free by a friend or relative
• treatment costs: if you paid for any physiotherapy or other treatment to help ease your symptoms or facilitate your recovery
• medication costs: if you purchased painkillers, anti-inflammatories or other medication
• travel expenses: the cost of travel to and from any medical appointments
  any other out of pocket expenses

It is worth noting that the cost of repairs to your vehicle or its write-off value, as well as any credit hire charges, should not be included when assessing the value of your claim, as these will normally be negotiated separately by the insurers outside of the portal process. However, if your claim ultimately goes to court, these sums will need to be included.

How long does a whiplash claim take?

There is no standard answer to the question of how long a whiplash claim will take. If it is a straightforward case, you may find that your claim will be resolved within a few short months. However, there are several factors that may prolong the process, including whether or not liability remains in dispute and how much medical evidence you will need. For example, you may need more than one medical opinion if you have sustained a range of different injuries, or a follow-up opinion where your injury does not fully resolve.

Typically, even in the simplest cases, a claim will generally take several months to conclude, so the quicker you seek expert legal advice, the sooner you will be able to recover the compensation that you deserve for your pain and suffering. In the most serious cases, where your whiplash injury has had a significant impact on your life and you have ongoing symptoms, your solicitor may also be able to secure an interim payment from the insurers.

What is the time limit to bring a whiplash claim?

With limited exceptions, most whiplash claims must be brought within 3 years of the date of the accident. As such, if you have suffered a whiplash injury in the last 3 years, even if you have now fully recovered, it is important that you seek legal advice as soon as possible.

Higher value whiplash claims

Equally, if the value of your claim falls outside of the portal process — if your injury is worth more than £5,000, or your injury and other losses taken together are worth more than £10,000 — any legal representation will typically be funded on a ‘no win no fee’ basis. Under a no win no fee arrangement, your solicitor will take out an insurance policy on your behalf before starting to work on your case to cover any costs incurred during your whiplash claim. These costs could include court fees, medical reports and other expenses.

Why seek legal advice?

If you have been involved in an incident which has left you with whiplash injury and it was not your fault, you may be able to make a claim against the party responsible for causing the accident.

Take legal advice early to understand the merits of your case and ensure you receive the maximum compensation for your injuries.

Whiplash claim FAQs

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.