Opinion remains mixed – aptly enough – over the recent ruling from the Court of Appeal on how mixed injury claims should be valued in the Official Injury Claim portal.
Judges upheld the lower court’s decision that pain, suffering and loss of amenity should be assessed for both whiplash injuries, for which a tariff exists, and other injuries for which one does not, with a small reduction to account for the overlap.
The two test cases were brought by Robert James Solicitors, which called it a “major victory” – but not everyone agrees, not least the Master of the Rolls, Sir Geoffrey Vos. His dissenting opinion said the tariffs laid down by Parliament “cannot be topped up by… claiming also in respect of other injuries”.
The Association of Personal Injury Lawyers welcomed confirmation that damages for non-tariff injuries must be paid but rejected any deduction that “risks under-compensating victims of negligence when they are already subject to reduced damages because of the whiplash tariff, which we have always argued is grossly unfair”.
Insurers also expressed disappointment at the ruling as lacking clarity and undermining the whiplash reforms. “It opens the door to double counting of injuries that could significantly erode the benefits of the reforms for premium paying motorists,” the Association of British Insurers said. It is now trying to appeal.
That argument would carry significantly more weight if motorists had actually seen the benefits. Contrary to the promise that savings would be passed on, insurance premiums have gone up.
In my opinion, it was never the intention of Parliament to remove the assessment of non-tariff injuries. The Civil Liability Act 2018, accompanying regulations and legal policy were confined to the perceived excessive volume of whiplash claims.
I cannot see that having clear guidance on non-tariff claims at last is anything other than positive.
The fact that we have any guidance at all is itself a cause for celebration after a wait of more than 18 months since the portal went live.
I still find it surprising that the Ministry of Justice chose to launch the portal without all the necessary tools to help it run smoothly.
As any personal injury lawyer will tell you, it has not. Over time, it can be easy to forget the volume of issues experienced since the portal went live and the number of system updates that have been required.
The clarity this ruling brings should mean that insurers will revise their valuation strategies, putting an end to protracted negotiations, which in turn will lead to fairer offers and allow claims to be brought to a swifter conclusion.
The bottleneck of claims in the portal that has built up while waiting for this ruling should also now start to clear and I hope that six months from now we will be seeing settlement times for claimants that are much shorter than the current average of 227 days.
In the short term, we may see an increase as some lawyers with mixed injury claims may have been waiting to hear the Court of Appeal’s decision before issuing their claims.
It is not perfect but it is progress, which is pleasing to see after so long spent lobbying for the problems that have blighted the portal since its launch in May 2021 to be addressed. This ruling should be the catalyst to create a system which works as intended (unless that intention was simply to reduce claims and nothing else).
That means putting a marketing plan in place to educate consumers about the changes. As a firm fielding direct enquiries from the public, I can tell you that most currently are not aware.
It also means revisiting and revising the basics, such as the user guide, so that more than the current one in 10 feel confident enough to go it alone as a litigant in person.
The biggest question remains why claims volumes have dropped so dramatically and is one nobody seems able to answer. The latest data from the Compensation Recovery Unit shows motor injury claims in particular have dropped by 44% since 2018, despite road usage returning to pre-pandemic levels.
I have no doubt that lack of awareness is a significant factor but probably one of many.
Is weeding out more spurious or downright fraudulent claims a ‘success’ of the whiplash reforms? That alone seems unlikely given the huge numbers we’re talking about. So too is such a significant shift in consumer mindset about making a claim and especially during a cost-of-living crisis.
Is the process too complicated? I’d argue it is and this is borne out by the fact that so many claimants (more than 90%) still seek legal assistance. In addition, there is certainly a reduction in law firms now handling lower-value RTA claims – 25% fewer according to the research of First4Lawyers – only making it harder to access help.
Perhaps it is also that those with mixed injury cases, which account for almost three-quarters of claims to pass through the portal, are put off by the uncertainty that has been hanging over it for so long.
The ruling on mixed claims may hopefully now encourage more victims of road traffic accident to come forward and that can only be a positive step.
A version of this article first appeared on Insurance Claims.