Evidence “does not back up” insurer claims of ‘hiplash’ and ‘wristlash’

Maxwell Scott: Data doesn’t support claims of surge in other injuries

Insurer assertions that the number of mixed injury cases has risen dramatically since the launch of the Official Injury Claim (OIC) portal are not borne out by the evidence, it was argued last week.

Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations (ACSO), said insurance lawyers must know that their claims of ‘hiplash’ and ‘wristlash’ replacing whiplash was “largely nonsense”.

Mixed claims are those that combine both whiplash injuries covered by the OIC tariff and other injuries that are not, and now represent more than two-thirds (68%) of the cases that go through the portal. How they are valued will be considered next year by the Supreme Court in the Rabot case.

The Association of British Insurers (ABI) told the justice select committee’s inquiry into the whiplash reforms – an interim report from which was published last week – that mixed injuries were a feature of just 27% of low-value road traffic accident cases in 2016.

“This would be remarkable, if it were true,” Mr Maxwell Scott told last week’s PI Futures conference in Leeds. “The problem is that it isn’t, at least not as far as we can tell.”

The OIC itself said the proportion rose from 61% in its first quarter of operations in summer 2021 to 67% in the most recent quarter.

Mr Maxwell Scott said: “The question is, what was the proportion before? Can it really have just been one in four?”

ACSO approached some of the largest medical reporting organisations (MROs), he said, and their data showed no material change in the number of mixed injury claims in the two years before the OIC launched to the two years after – indeed, one MRO actually reported a fall.

He went on: “There has been a slight increase in the average number of injuries per case. This reflects factors such as that shoulder injuries are now counted separately from whiplash ones because of Civil Liability Act definitions, for example.

“As for a surge in other injuries, the data doesn’t support this. There have been some increases here and there, but from a very low base. Equally, while some MROs report an increase in psychological injuries, others report a fall.

“Insurance lawyer talk of ‘hiplash’ and ‘wristlash’ is largely nonsense and they must know it.”

Mr Maxwell Scott described as “for the birds” the argument that there was widespread falsification of non-whiplash injuries, or that “doctors, lawyers and clients are somehow colluding to undermine the aims of the Civil Liability Act and, what’s more, that they somehow knew to do this from midnight on 31 May 2021 [when the OIC went live]”.

He said he understood that the ABI’s personal injury committee only voted by 11 to 10 to pursue the appeal to the Supreme Court.

“But pursue it they did, and the warning I would offer to claimant representatives is a simple one: don’t think that even a positive result in Rabot will change compensators’ tactics.

“They will push for more injuries to have a tariff, for the small claims track limit to rise further, and for more burdensome anti-fraud measures that will make life harder for honest claimants.”

Among Mr Maxwell Scott’s calls for the future of OIC claims were greater take-up of legal expenses insurance – “which can give consumers the support they need but at a low cost” – and compulsory arbitration.

In a separate conference session, a barrister who acts for both sides warned that the one-stop shop for personal injury claimants, where they received all the services they needed to make a claim, could be seen by defendants as “claims layering”.

Steven Turner, based at Parklane Plowden chambers in Leeds, said claimants and defendants had conflicting “world views”, with “evangelicals on both sides” and the commitment of each side to its world view “quite striking”.

He went on: “Coming into a case cold, you sometimes think the tone of the correspondence on both sides could have been a little more constructive.”

For claimants, having access to legal advice, medical treatment and vehicle repair from the same source was “tremendous” in terms of delivering access to justice and a good service.

But for defendants, observing “the links between the various services”, it could be seen as “claims layering”, with “expensive and unnecessary medical treatment”, inflated repair costs, elongated hire periods and inflated hire rates, for example by the use of a “luxury brand that costs three times as much as a standard family saloon”.

The problem for defendants was that, although they might have suspicions about a claim, “an individual case won’t give you a picture of what is happening across an industry”.

Another problem was that the injuries complained about were “notoriously subjective”.

Mr Turner said the “big picture” was provided by similar fact evidence, which was “not enough by itself” but could be used to support an attack on the claimant.

He referred to the county court decision in Khan v Aviva, in which the district judge found evidence that a law firm had “colluded” with medical experts and others to layer a claim.

Mr Turner said the claimant and four children all made identical claims for physiotherapy and cognitive behavioural therapy (CBT).

The defendant found “a pattern of referrals” from the solicitors to the expert, who recommended the same amount of physio and CBT in every case. The judge suggested that the Solicitors Regulation Authority investigate the law firm and the General Medical Council the medical expert.

“Does it make a difference to me as barrister if I’ve got similar fact evidence? I think it does,” said Mr Turner.

“Defendants have the data and are looking for strikingly similar behaviour. If it is admitted in evidence, the judge is likely to be hostile to your counsel and smell a rat.”

At the same time, he said, it would not be enough to displace the evidence of a credible claimant.

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