Before the Minister responds perhaps I may, in the probing spirit of the amendments, mention one point that has occurred to me in light of the noble Earl’s proposed deletion of the word “psychological” from various provisions in Clause 2. I completely understand what the Government are hoping to achieve by using the term “minor psychological injury” in those provisions. I imagine they have in mind the fact that in cases of the type we are considering, it did become routine, and probably still is routine, for claimants to be advised to get a supportive report from a psychiatrist that uses the term “post-traumatic stress neurosis” or something similar as a way of enhancing the eventual award. I can see that that is a problem that the use of the term “psychological injury” is directed at.
The noble Earl makes a significant point when he refers to the bruised or gashed knee of the claimant in this type of case. I am not sure how that type of case, where there is a whiplash injury but also some other injury that is outside the definition of whiplash injuries, will be satisfactorily addressed. I imagine that the tariff award for whiplash injury will be fairly low. I do not have the answer to this problem, but I am contemplating the position that will arise when a claimant has suffered a whiplash injury and is entitled to the tariff award, which may be only a few hundred pounds, but has also suffered a probably rather less serious injury to, say, his or her knee. A gashed or
bruised knee might stop them from playing football, skiing or whatever it may be, and would be worth, I guess, a few hundred pounds—it might edge into £1,000. You might get an anomalous outcome that would involve claimants recovering more for very trivial injuries to the lower part of the body than they are entitled to recover, pursuant to the Bill, for the relevant whiplash injury. I do not know what the answer is, but it is a potential problem.
1 pm
Clause 2(8) begins to address that problem. I want to mention, again in a probing spirit, and without having any answers, what may be a difficulty in the drafting of Clause 2(8). It contemplates that the court may award an additional amount of damages for an injury that falls outside the scope of the definition of whiplash injuries. At the moment, I am puzzled—I do not know if the Minister can help me on this—by the effect of the words in brackets at the end of the subsection, namely,
“(subject to the limits imposed by regulations under this section)”.
I am not sure what “limits” refers to there, because the subsection appears to create tariffs rather than limits. I am not sure what it is intended the court should do when confronted by a claimant who has suffered a whiplash injury which attracts the tariff award but who also places before the court a number of other minor injuries that fall outside the definition. There are serious problems here and I have sympathy with the drafters.