The insurance industry has sought permission to appeal the Court of Appeal ruling on mixed injury claims in the Official Injury Claim (OIC) portal to the Supreme Court.
Claimant representatives have expressed their unhappiness with the move, saying it would leave thousands of claims in “legal limbo” while this process played out.
Though the Court of Appeal refused permission, the fact that the Master of the Rolls, Sir Geoffrey Vos, dissented may give the defendants in Hassam & Anor v Rabot & Anor hope that they will succeed in their application.
The two cases were leapfrogged to the appeal court from District Judge Hennessy in Birkenhead and dealt with how the court should value cases where the claimant suffered both an injury covered by the OIC tariff and one that was not.
The majority essentially upheld the district judge’s approach of valuing both injuries separately in accordance with whatever scheme or tariff applied, and then reducing the total for any element of overlap of the non-tariff element with that already compensated for within the tariff for pain, suffering and loss of amenity (PSLA).
The defendants argued that all PSLA common to (i.e. concurrently caused by) both the tariff and non-tariff injuries should be treated as fully compensated for by the tariff award.
This meant only a further small amount would be appropriate for any additional PSLA, if any could be exclusively attributed to the other injuries as being solely caused by them.
Vos MR said the wording of the Civil Liability Act 2018 “leads inexorably to the conclusion” that the defendants’ position was the correct one “as a matter of statutory construction”.
The Association of British Insurers (ABI) is representing the interests of the defendants in the appeals and a spokesman said yesterday that the majority ruling “risks undermining the intent of the whiplash reforms and opens the door to double counting of injuries”.
He continued: “In the face of rising cost pressures, motor insurers are doing all they can to keep prices competitive for customers, but the Court of Appeal decision will only make it harder to keep premiums as low as they otherwise could be.
“We note the dissenting judgment from the Master of the Rolls, and therefore in the interests of motor insurance customers we are seeking permission from the Supreme Court to appeal.”
In a statement, Liverpool firm Robert James, which acted for the claimants, said: “We maintain that the Court of Appeal decision was fair and reasonable as it succeeded in balancing the competing interests of claimants and insurers.
“It is understandable that insurers were disappointed by the decision; however, the insightful and authoritative guidance provided by the Court of Appeal provided much-needed relief to claimants who have been subjected to systematic attacks upon their entitlement to damages and access to justice.
“It’s our view that this has to be a line in the sand for claimants and their representatives.”
Both the Association of Personal Injury Lawyers (APIL) and Motor Accident Solicitors Society (MASS) intervened in the case before the Court of Appeal.
APIL secretary Brett Dixon said: “The Court of Appeal confirmed the crucial point of principle that full damages must be paid for non-tariff injuries, which provided the certainty injured people need about the principle of full compensation.
“The final award cannot be less than would be awarded for the non-tariff injuries if they had been the only injuries suffered by the claimant.
“Any attempt to undermine this will be extremely disappointing. We will obviously monitor the situation very carefully and will seek permission to intervene if the appeal goes ahead.”
A MASS spokesman added that it too would seek permission to intervene if the Supreme Court heard the case, “not least because the Court of Appeal judgment left some of our key concerns unaddressed, subjecting injured people to ongoing uncertainty”.
Matt Currie, chief legal officer at leading claimant firm Minster Law, said the ABI’s move was disappointing.
“The failure of the Ministry of Justice [to deal] with the issue of valuing multi-site injuries prior to reforms going live caused uncertainty for consumers and delay to many settlements,” he said – and the attempt to appeal would only continue that uncertainty and create “further delays to a significant number of settlements – whilst keeping them on the reserve books of insurers and increasing costs”.
Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations, echoed the concern that thousands of disputed claims could now “remain in a legal limbo”.
He continued: “The insurers’ decision is doubly perverse because they could also have got on with settling the claims backlog, some of which would have to be litigated, so we would have seen some much-needed easing of pressure on the civil courts. In this respect, insurers seem to be cutting off their nose to spite their face.”