Are five hundred words not enough to define what ‘whiplash’ means?

In a blog earlier today we noted that measures to address “whiplash” are to be included in the Prison and Courts Bill published today.

Indeed Part 5 of the Bill, which has just been published, is simply headed “WHIPLASH” (the capitals are from the Bill itself). The content of part 5 stretches across pages 59 -65 of the Bill but despite the length of the clauses included there, it should be noted that a great deal of the detail will be left to regulation.

For example:

  • Clause 61 of the Bill provides that the term “whiplash injury“ is to be defined in secondary regulations. A definition is not therefore included on the face of the Bill. Clause 61 runs to very nearly 500 words and uses the word “whiplash” three times but it seems even this is not enough by way of definition.
  • It really is worth a look at the text of clause 61 just to see how intricately Parliamentary counsel has had to draft the power to define “whiplash” (follow this link https://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0145/cbill_2016-20170145_en_7.htm#pt5-pb1-l1g61) One might contrast the 500 words needed there with the relatively brief current definition of soft tissue injury at 16A of the low value road traffic protocol, which is a mere 43 words: “‘soft tissue injury claim’ means a claim brought by an occupant of a motor vehicle where the significant physical injury caused is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury”.
  • The amount of compensation for general damages for “whiplash injury” – however it is going to be defined – in which symptoms last less for than two years will also be set out in regulations (it is to be a banded tariff). It should however be noted that the two-year period features in the Bill itself.
  • Other regulations may allow a court to increase the compensation (ie the tariff amounts) in exceptional cases, but the percentage increase* allowable will itself be specified in regulations and Lord Chief Justice has to be consulted in advance of these being made. [* There is no provision for a percentage decrease.]
  • The ban on pre-medical offers in whiplash cases is to be introduced by preventing regulated persons (insurers, solicitors and other lawyers, and claims management companies) from settling cases without appropriate evidence. Perhaps unsurprisingly given the overall approach here, the term “appropriate medical evidence” is to be defined in yet more regulations.

All of the necessary regulations required by part 5 will be made by Statutory Instruments (SIs) subject to affirmative resolution; meaning they will have to be debated in both Houses of Parliament.

What is interesting is that although this will afford MPs and Peers the opportunity to debate the necessary regulations, any vote will almost certainly be a simple choice between content / not content. There is not normally any opportunity, within the affirmative resolution procedure, for the detail of the SI to be amended. As the Parliamentary factsheet on the point notes: “SIs cannot, except in extremely rare instances where the parent Act provides otherwise, be amended or adapted by either House. Each House simply expresses its wish for them to be annulled or passed into law, as the case may be.”

Whether the consequences of this procedural point might result in attempts to amend this part of the Bill itself during the substantive debates about its content remains very much to be seen.


ak Written by Alistair Kinley, director of policy and government affairs

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