False start
Two years after controversial whiplash reforms came into force, CILEX practitioners from both sides of the fence give their views on how the reforms are working in practice
In May 2021, changes to the claims process for low-value road traffic accident (RTA) related personal injury claims (often but not exclusively, whiplash claims) came into force. The reforms applied to claims worth no more than £5,000, deemed small claims. These claims are now processed online, through the Official Injury Claim (OIC) portal.
The government’s stated aims for the reforms were to combat illegitimate claims, drive down legal costs and reduce the need for legal representation, raising concerns that savings for the insurance industry would be made at the expense of injured claimants.
While claimant and defendant practitioners may disagree about the relative success of the reforms, there is no doubt from both sides that the OIC portal has thrown up uncertainty as to how claims that combine whiplash and other injuries are handled, with the issue now making its way through the courts.
William Balfry, Chartered Legal Executive and senior associate at DWF gives the defendant lawyer’s perspective:
It has been two years since the OIC portal was introduced, with the aim of cutting legal costs in the low-value RTA arena and encouraging claimants to handle claims themselves rather than seeking representation from a lawyer.
“We are now seeing approximately 32,500 new RTA low-value claims presented per month. At almost half the number of claims, this is a significant drop”
On costs, we will know more once insurers publish data later this year. It will be interesting to see if overall claims spend has dropped as hoped. What is clear, however, is that the plan to encourage individuals to bring claims themselves has not been realised with around 89% of claimants still represented through the process.
It was also hoped that the reforms would discourage those bringing unmeritorious claims. Pre-pandemic, and before the reforms were introduced, according to Ministry of Justice (MoJ) data, the number of new RTA claims per month were generally between 50,000 and 60,000.
Currently, OIC monthly submissions have settled down to around 25,000 per month and MoJ portal RTA submissions – for cases worth between £5,000 and £25,000 – have fallen to around 7,500 new claims per month. This means we are now seeing approximately 32,500 new RTA low-value claims presented per month. At almost half the number of claims, this is a significant drop, although it is important to take into account the impact of the pandemic on people’s driving and working habits.
Mixed injury claims
You might think this equals success from an insurer point of view, with the main aims of the new portal met, but it is more complicated than that.
The main issue causing difficulty for practitioners and judges alike is the 'mixed injury' scenario where a tariff injury, assessed according to the whiplash regulations, is accompanied by non-tariff injuries that are assessed as in accordance with the Judicial College Guidelines. The prevalence of non-tariff injuries arising from a simple car accident has risen exponentially since the OIC arrived, with around 66% of claims involving non-whiplash injuries such as an injured elbow, wrist or knee.
Before the new system was introduced, whiplash was by far the most prevalent injury in fast-track claims, most often presented on its own, and was valued as such, with a small 'top-up' for additional injuries.
The Court of Appeal attempted to deal with how to value these mixed tariff cases in the conjoined appeals of (1) Rabot v Hassam (2)Briggs v Laditan [2023] EWCA Civ 19. Two of the judges decided in favour of the claimant, with the Master of the Rolls dissenting. The court upheld the lower courts’ three-step approach of assessing each individual injury using the tariff or traditional method, adding them together, then stepping back to carry out necessary adjustments, stating that the total award should not be less than the non-tariff element alone.
Such adjustments are made using the Sadler approach to mixed injuries, derived from a 2011 Court of Appeal ruling. This approach is utilised to discount the overall total so as not to overcompensate the claimant.
In some cases, this was leading to awards being higher than they would have been pre-whiplash reforms, as previously the whiplash injury would have been looked at first with the additional injuries as 'top-ups'.
The Association of British Insurers has recently been granted permission to appeal the decision to the Supreme Court. In the meantime, litigation in cases like this has continued, with most cases being heard in the Birkenhead and St Helens courts. This has meant a small selection of judges deciding many of the OIC quantum disputes.
Unproven injuries
From the defendant's perspective, these additional injuries are unproven, without the accident mechanism explained in medical evidence. The only effective way to challenge this scenario is to have the case transferred to a claimant's local court and have them there for cross-examination.
Claimants might argue this is not the point of the reforms and, if this is what the defendants want, cases should be cost-bearing from then on. The defendant’s perspective is that the data shows such injuries were not present in these numbers before the reforms and that without the raising of what they see as implausible injuries, the additional steps in proceedings would not be necessary.
So, while we appear to be seeing some benefits from the reforms in terms of disincentivising illegitimate claims and cutting legal costs, lawyers are still very much involved in the process and face uncertainty about how damages will be calculated. We now await a date for the appeal in the Supreme Court to provide much-needed clarity.
Chartered Legal Executive and court advocate Gary Claeys gives the claimant lawyer’s perspective:
One of the key objectives behind the creation of the OIC portal was to make the process of bringing a small personal injury whiplash claim simpler and more easily accessible to the general public. As an advocate at court hearings dealing with the assessment of damages arising from OIC portal claims, I question whether this has been achieved.
“My experience of the portal is that the process is likely to be absolutely baffling to the average layperson”
My experience of the portal is that the process is likely to be absolutely baffling to the average layperson. Not only is there the technology to navigate but there is also a plethora of new forms which make the system complicated and much more difficult to use than the stage 3 process under the pre-action protocol for low value personal injury claims arising out of RTAs.
There is the court valuation form, the list of losses and other documents. In terms of assessing general damages for pain suffering and loss of amenity, how is the litigant in person able to accurately assess the value of a claim which includes a tariff injury under the whiplash regulations and a non-tariff injury which is assessed according to common law principles under the 16th edition of the Judicial College Guidelines?
Access to justice
The appropriate method for this kind of calculation has taxed the Court of Appeal and resulted in the Supreme Court granting permission for a further appeal in (1) Rabot v Hassam (2)Briggs v Laditan [2023] EWCA Civ 19. The Court of Appeal itself was split with the Master of the Rolls giving a dissenting judgment. Against this backdrop, there seems little hope for access to justice without recourse to lawyers – the stated objective of the new scheme.
The statistics published since the introduction of the OIC portal evidence a dramatic reduction in the number of claims. This suggests that the opaqueness of the system means people who are entitled to compensation, albeit often fixed as a tariff amount, are not obtaining it. The assessment of damages hearing in the OIC process often involves challenges by defendants’ representatives as to the issue of causation of non-tariff injuries, relying on a case in Birkenhead County Court of District Judge Hennessy – Gray v Somerset Bridge Insurance Services.
In that case, it was said that the non-tariff injury was not included in the small claims notification form and that the mechanism of injury was not adequately described in the medical evidence.
Judge Hennessy agreed as to the lack of mechanism of the non-tariff injury stating: “I am neither told a mechanism for the injury nor am I told what soft tissue was injured. In my view, on the basis of the medical report I have, it is impossible for me to place these injuries within reg 1(3) rather than classify them as tariff injuries. The claimant does not meet the evidential burden she faces.”
The result was that the claimant only recovered the tariff element of the injury.
Cross-examination
This approach means that we are increasingly seeing requests for cross-examination of the claimant in relation to very small injury claims. This increases costs disproportionately, something that was certainly not the intention of the new process.
How should the court deal with such requests? In my view, it should not be automatic. The defendant should be able to advance cogent reasons as to why the claimant is needed for cross-examination. Issues of causation as to injury can often be dealt with on the basis of the court papers, particularly the medical report, as happened in the Somerset Bridge case and after the judge has heard submissions from the legal representatives.
If requests by defendants to cross-examine claimants are routinely granted, this will result in claims being transferred to the claimant’s home court with lengthy delays, increases in costs and a consequent strain upon court resources. This would totally subvert the objectives of the new scheme.
It seems, therefore, that the OIC process is unfortunately a long way from achieving the objectives that the scheme set out to achieve.