A guide to making a No Win No Fee whiplash injury claim
23/02/17 - Important Update - What genuine whiplash injury claimants should do about Government claims clampdown.
The recently-announced Prisons and Courts Bill legislation includes set of reforms that will impose a financial compensation cap on genuine soft tissue injuries of a maximum £3,725.
If you would like to know how the changes to the law might affect your whiplash claim, speak to a solicitor on 0800 612 7456.
A guide to making a No Win No Fee whiplash claim
Whiplash is very common with around 1,200 claims made in the UK every day. The majority of claims are made by drivers or passenger in cars. Claims made by passengers injured on a bus, train, taxi or other public transport are also not uncommon.
How do I know if I have whiplash?
First coined in 1928, the term ‘whiplash’ is often used to mean almost any injury to the neck.
Definition of ‘Whiplash’
More accurately whiplash is a term used to describe a neck injury caused by a sudden movement of the head forwards, backwards or sideways. It often occurs after a sudden impact such as in a car accident. The vigorous movement of the head damages the ligaments and tendons in the neck.
Common symptoms of whiplash include:
- neck pain and stiffness
- tenderness over the neck muscles
- reduced and painful neck movements
After an accident, the symptoms of whiplash usually take a while (6-12 hours) to develop.
The neck pain and stiffness is often worse on the day after the injury and may worsen further for several days afterwards.
The sudden movements may damage tendons and soft tissue in the neck and spine, causing severe pain and muscle spasms.
Does whiplash affect other parts of the body than the neck?
Other symptoms may include frequent or persistent headaches, backache, dizziness, blurry vision, nausea, the feeling of pins and needles in the arms, and even ringing in the ears.
If there has been damage to nerves in the neck and spine there may be numbness in the hands and feet.
Symptoms may not always occur immediately after the accident - they may be delayed for hours and possibly several days or weeks later.
Some symptoms - such as those from a minor jolt to the neck - may improve within a few days, but more serious cases might cause pain for six or more months.
Infant whiplash injury symptoms
A young child, baby or toddler will have difficulty expressing that they have sustained a whiplash injury, and there may be no visible marks to suggest the child is injured. Symptoms to watch out for in the days after an accident that may indicate whiplash include stiffness and reduced neck movement, nausea and dizziness, and changes to the baby’s mood or sleeping patterns.
Do I need a medical diagnosis to make a whiplash claim?
Minor cases of whiplash are often treated with painkillers, and an injured person may not feel they need to see a doctor. For the purposes of a compensation claim, however, a solicitor will refer you to a doctor to carry out a medical assessment.
Following the examination, the doctor will confirm their whiplash diagnosis in a medical report. This report is critical evidence in support of your claim.
X-rays and scans are not usually required, as soft-tissue injuries will not usually be visible. It is advisable to always seek the advice of a medical professional as soon after the accident as possible.
Can I make a whiplash claim without a doctor?
Without a doctor’s report confirming the severity and likely duration of symptoms, it can be difficult to ensure that you receive the correct amount of compensation.
An insurance company may make you an offer early in the process, before you have seen a doctor, but this first offer is likely to be on the lower end of the scale.
Causes of whiplash
Caused by the head being moved forward, backward or side-to-side in a sudden, violent manner, whiplash is often the result of a sudden impact. Most whiplash injuries occur through vehicle collisions, but may be a result of sporting accidents, or through slips or falls.
Road accidents are the most common cause of whiplash, but it can also occur following:
- a sudden blow to the head - for example, during contact sports such as boxing or rugby
- a violent twist or wrench - for example, during a workout at the gym or bungee jumping
- a slip or fall where the head is suddenly and violently jolted backwards
- being struck on the head by a heavy or solid object
According to one leading insurer, whiplash accounts for 76% of all bodily injury claims made in the UK. Whiplash tends to affect women more than men.
What to do if you think you have whiplash
Firstly, always report the accident to the police and seek medical attention as soon as possible.
If after your accident you wish to pursue your claim for a whiplash injury you will be required to attend a further medical. The health professional that sees you will be able to provide you with a formal diagnosis, which will form the basis of your claim.
The next step is to contact a specialist injury solicitor. We have a team of experts, who deal with whiplash injury claims and they will endeavour to seek the maximum compensation for you.
Whiplash claim tips
Whether or not symptoms are immediately apparent, it is important to document the accident.
Noting the time of day and location of the accident, and getting the contact details of others involved in the accident (and any witnesses) is the first step in demonstrating the legitimacy of a claim.
Take a many photographs of the accident scene and damaged vehicles as possible. TRy to take pictures from multiple angles.
If the accident caused injuries the police should have been involved and the incident reported.
Where injuries sustained require subsequent treatment, other documents to support a claim would include medical records relating to the injury with details of any medication and physiotherapy prescribed. These would be gathered and submitted as the claim process progresses.
There may be other costs associated with the injury, such as travel expenses, as well as possible loss of earnings if the injury has prevented the claimant from working. Employment records will verify this.
Am I eligible to make a whiplash claim?
The rules for who is entitled to make a whiplash claim can be set out as checklist of specific criteria.
If you have suffered a whiplash injury and can answer "yes" to the following requirements you may be eligible to claim compensation:
- is there evidence that the accident was someone else's fault, either in part or in full? (you may still have a claim even if there is a dispute as to who is to blame)
- did the whiplash injury occur as a result of the accident?
- did the accident occur in the last three years?
In order to successfully claim, the lawyer must establish that the driver or passenger’s injury sustained was caused by the accident and the defendant can be held legally accountable for the accident.
How long after the accident do I have to make a claim?
If your injury or discovery of the symptoms) occurred within the last 3 years then you may be entitled to make a claim. It is therefore possible to begin a claim after 1 year or even 2 years after the date of the injury.
The claim time limit is different if the injured person was under 18.
What if the passenger was a child?
Whiplash injuries affecting children, infants and babies are not uncommon. A claim can be pursued for anyone under the age of 18 by a parent, guardian or ‘litigation friend’. The injured child has up to the age of 21 to initiate a claim on their own behalf.
How much compensation can you claim for whiplash?
When trying to estimate what a whiplash claim is worth (i.e. the money you will be offered), it is misleading to consider an average payout or minimum payout. There is no such thing as a typical whiplash claim value, because every claim is considered on the facts of the case.
The valuation of a whiplash claim is based primarily on the duration and severity of the symptoms.
Compensation claim rates for minimum and maximum settlement amounts are made by the Judicial College guidelines (formerly the Judicial Studies Board guidelines).
Courts will use these guidelines to calculate compensation awards. Insurers and their solicitors will also use the guidelines when making a settlement offer.
There are three categories of whiplash injuries set out by the Judicial College:
Minor injuries affecting the neck, shoulders and upper back are those which resolve themselves quickly, and do not cause too much pain and disruption to the daily life of the claimant. They are usually addressed with minor physical therapy or medication.
Claimants considering when to make a claim should be aware that legislation coming into force in October 2018 is set introduce a lower whiplash injury cap for injuries of short duration.
Moderate whiplash includes soft-tissue injuries that last for between a year and two years after the accident. The degree of pain and suffering caused by the injury means that everyday life may be affected, causing time off work and an inability to participate in sports and other activities.
Severe injuries may extend beyond two years and may be permanent. These cases may need ongoing care and medication, and extensive treatment, possibly including surgery. A very serious whiplash injury could mean the affected person is no longer able to work.
Example whiplash claim payouts
Whiplash compensation for a minor case, where the patient returns to normal within a few weeks of being injured could be anything between £870 and £3,000. More serious whiplash injuries, where the patient takes a lot longer to recover, or which may have caused pre-existing conditions to worsen, can result in an average whiplash compensation of between £5,000 and £9,000.
For the most serious cases, where damage is permanent, repeated surgery is required and movement is limited, compensation can be as much as £16,500.
Please note that compensation awards for injuries similar to the above examples will be considerably lower once the ‘whiplash reforms’ come into force.
In claims where a pre-existing injury or condition has been exacerbated as a result of the illness or accident, compensation may also be claimed.
Damage to personal possessions, travel expenses (such as to doctors' appointments) and the cost of treatment may also be included in a claim. These are defined in legal terms as special damages.
Whiplash compensation calculator
To find out how much compensation you could claim, see our whiplash compensation calculator. The calculator will give you an estimate of how much compensation you are likely to receive including:
- General damages - (award made for pain and suffering)
- Special damages - including compensation for any time taken off work or loss of earnings as well as any costs or expenses incurred.
Can you make a whiplash claim through insurance?
When you make a personal injury claim, for whiplash or any other injury that occurs as the result of a road accident that was not your fault, the claim is usually handled by the negligent driver’s insurance. In these circumstances, whatever insurance coverage you have should not be affected.
What the insurance companies do not want you to know
Recent research by the Financial Conduct Authority revealed personal injury claimants who turn down an insurance company's initial offer and instruct an expert solicitor get on average three times more compensation. This information was only available publicly as a result of a Freedom of Information Act challenge.
Knock-for-knock whiplash claims
If both sides admit some degree of fault, or there is no agreement as to who caused an accident, the insurance companies of the two drivers may agree to settle the case on a ‘knock for knock’ basis. This means that compensation is paid out by each driver’s own insurer, not the other side.
Knock-for-knock saves insurance companies money in legal fees, and will resolve the matter faster, but it can affect drivers own claim history and future premiums. For this reason, the practice may be seen by some as unfair, benefitting the insurers more than it does the innocent party.
Whiplash pre-medical offers
Insurance companies may sometimes make a settlement offer known as a ‘pre-medical offer’. For more information please see ‘Should I accept a pre medical offer?’
Making a no win no fee whiplash injury claim with Quittance
Finding the best whiplash claim company for your needs is not always easy. Some solicitors are multi-disciplined and offer a more generalised local service to personal injury claimants. Some companies offer a more specialised national service where the company only takes on road traffic accident work.
Whiplash claim success rate
There is a considerable amount of disparity in the whiplash claim success rates of firms. It is a good idea to ask what a firm’s success rate is before instructing them. A good solicitor should be able to give you an idea of your chances of winning your claim.
No Win No Fee
No Win No Fee means that if your claim is unsuccessful then you pay no fees, costs or disbursements whatsoever if your claim is unsuccessful. It does not cost you anything to make a claim if you lose.
Solicitors are no longer able to offer Legal Aid to whiplash claimants. Solicitors now work on a no win no fee basis. No win no fee is an agreement, technically known as a ‘Conditional Fee Agreement’ or ‘CFA’, which is entered into between a claimant and a suitably qualified solicitor.
The CFA is a detailed form with associated terms and conditions which is signed by both the claimant and the solicitor.
A no win no fee agreement is basically the conditions under which the solicitor acts for the client.
The CFA documents what the solicitor will do and how he or she is remunerated if your legal case is successful.
How long does a whiplash claim take?
How fast a whiplash claim will reach a settlement and payout will depend on a number of factors. Compared to other types of accident claim, whiplash claims for road accidents are usually quick to resolve. The quickest whiplash claim could pay out in a matter of weeks, with most resolving within four months.
The short duration of most whiplash claims is due to the use of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.
The Pre-Action Protocol is often referred to by solicitors as the ‘Claims Portal’ (the name of the online system the Protocol uses). The Protocol sets out a tight timeframe of milestones to make sure that insurers make decisions promptly, and to prevent cases from dragging on for months unnecessarily.
Whiplash Claim Frequently Asked Questions (FAQs)
Will my whiplash claim go to court?
The overwhelming majority of cases are settled out of court so the likelihood of ever having to go to court is statistically very small. If there is a dispute however, or if the defendant refuses to communicate then a court hearing may be necessary. Even then, the arranging of a court date tends to ‘smoke out’ a settlement offer from the defendant.
Do I need a solicitor to make a whiplash claim?
Technically, no, but a solicitor can help to ensure that you get the correct amount of compensation that you are entitled to. The can also correspond with the defendant and their insurance company, on your behalf, to negotiate on issues like interim payments.
Who pays the whiplash claim compensation?
Road traffic accident claims are usually settled by the defendant’s insurance company. If the defendant does not have insurance or is untraceable, claimants can apply to the Motor Insurers Bureau’ (MIB).
Can I make a whiplash claim if the symptoms have cleared up?
Yes you can if you obtained medical attention at the time which corroborates the injury. It will usually be necessary to obtain copies of any supporting medical evidence.
Can a whiplash claim be refused?
A solicitor will usually be you whether you have a claim or not within a short space of time. Sometimes it may be more complicated - e.g. where there is split liability. If you do not meet the eligibility criteria then the solicitor may refuse to take on your claim.
Is there a minimum speed of collision for a Whiplash Claim?
It is possible to sustain whiplash injuries in a low velocity collision (up to 5mph) and a claim can therefore be made. It is likely that low speed collision injuries will be of a lesser severity than those sustained at moderate or high speed and compensation will be consequently lower.
Can I make a claim if there was no damage to the car?
In short, yes. Whiplash can be sustained in a low speed collision where there is no vehicle damage. It is also possible to sustain injuries where there is no collision at all, e.g. when the driver takes preventative action.
For example, a negligent driver’s conduct may cause another road user to perform an emergency stop. A collision may be avoided, but the abrupt braking could well cause a whiplash injury, particularly if the vehicle was travelling at speed.
Should I accept a first offer?
Early offers to settle are commonly made by insurance companies to claimants who have yet to speak to a solicitor. These offers are usually in the region of £1,000. Cases are usually settled for much more than this when a solicitor is involved. It would certainly be advisable to first speak to a solicitor about a first offer and a decision can be made after seeking this initial advice.
Can I make a whiplash claim as a passenger?
Yes. From the point of view of making a whiplash claim, whether you were driving or were a passenger is immaterial.
Can I make a claim if I wasn't wearing a seatbelt?
It is still possible to make a claim if you were not wearing a seatbelt. You will, however, be deemed to have contributed to the severity of the injuries meaning there was blame on both sides. This is known as ‘contributory negligence’ and will typically mean a reduction of the compensation award of around 25% in this example.
Can I make a claim if I had no insurance?
As a passenger, you can make a whiplash claim without insurance. This is because in most cases compensation is paid out by the negligent driver’s insurance company, not your own.
If you are a driver involved in an accident that was not your fault and you do not have insurance, the situation is more complicated. Driving without valid insurance is an offence, and whether you can make a claim will depend on the facts of the case.
Can I get an interim payment for a whiplash claim?
In theory, yes. It may be possible to negotiate an interim payment for whiplash if:
- liability for the accident is clear (who caused the accident), and
- the injured person needs the money urgently, for example to fund physiotherapy or to cover living expenses while they are unable to work.
It is much more difficult to negotiate an interim payment if the liability for the accident, or the severity of the injury, is disputed.ttance-logo.png">