Supreme Court agrees to hear insurer appeal on OIC mixed injuries

Supreme Court: Permission granted

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”.

    Readers Comments

  • Robert Gorniak says:

    I have similar problem,driver from sporty Mercedes was raising on motorway and hit my car from the back ,I’m lucky to survive ,insurance company accepted liability but I can get proper injury compensation,they convinced me I should go through the portal and that was mistake ,no legal help at all I have to fill up all the forms and tick boxes myself unrepresnted ,no help at al and when I tried to find solicitors on no win on fee bases nobody wanted to take over my case because I went through portal,I have made so many mistakes and tick boxes all this I used against me
    Insurance offered me £1000 compensation and I have refused all offers and case going to court but I’m terrified I have to go to court unreprsented
    I’m also safer mentally until now nearly one year after accident with wasn’t my fault
    If somebody would like to help I will be appreciated

  • Dave Harallambos says:

    I wouldn’t worry about going to court. The judges are aware this new system is for LiPs (litigants in peson i.e. not lawyers). Main thing is ensure you’re honest and be realistic and reasonable on what compensation you’re entitled to under the law. Unfortunately, the amounts are much lower now for whiplash injuries (see the set tarriffs based on how long your symptoms lasted, and compare that to what the independent expert said in your report). Have you checked that you don’t have legal expenses insurance either on your motor policy, or attached to a family household insurance policy. Many household policies include that. If you do., then they may be able to instruct a lawyer to act for you and paid by your insurers.

    You may be able to instruct a direct access barrister to represent you but you’ll have to pay their brief fee to attend court. Be aware you are no longer able to recover that from the defendant insurer. The new law now means many people have to deal with their RTA claims themselves. The system has been widely criticised as being too difficult to navigate, as you’ve found out Unfortunately.

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