The Supreme Court has granted the insurance industry permission to appeal the Court of Appeal ruling on mixed injury claims in the Official Injury Claim (OIC) portal.
Claimant representatives have warned that the decision is likely to delay settlements of claims – or force people to accept lower sums than they might be entitled to.
The cases of Hassam & Anor v Rabot & Anor 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.
Dissenting, the Master of the Rolls, Sir Geoffrey 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 is representing the interests of the defendants in the appeals and a spokesman said: “We believe that the Court of Appeal’s judgment on the mixed injuries test cases risks undermining the intent of the whiplash reforms and opens the door to double counting of injuries.
“We’re pleased that we have been granted the right to appeal, and will continue to act in the best interests of motor insurance customers, while ensuring fair and proportionate compensation for claimants.”
Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations, said: “We hope the court rules in favour of the injured party, to offset the dramatically lower levels of compensation they now receive for whiplash injuries and to avoid the conclusion that other injuries sustained are somehow less important or severe simply because there was a whiplash involved.
“Tens of thousands of cases remain in limbo at the present time, so we urge the Supreme Court to deal hear the appeal with urgency.”
If it was not, he continued, “hundreds of thousands of people suffering from mixed injuries may have to wait until as late as 2025 for clarity” – a full seven years after the Civil Liability Act was passed into law.
“Of course the beneficiaries of a reversal of the Court of Appeal decision by the Supreme Court will be insurers and their shareholders, while consumers with multiple injuries lose,” Mr Maxwell Scott said.
“We repeat our view that such an outcome would be unfair, unwarranted and unreasonable.”
Andrew Wild, head of legal at First4InjuryClaims, described the decision as disappointing. A failure to affirm the Court of Appeal’s “clear guidance” would lead to “a further unintended windfall for the insurers at the expense of the injured claimant who suffers multiple injuries following an accident”.