Court of Appeal hands down judgment on ‘Mixed Injury’ claims in the OIC Portal

The Gallagher Bassett Strategic OIC Portal working group recently met to discuss the OICP CA decision, headed by Technical Director – Andy Sewell who has provided the following update on the decision:

The awaited Judgment from the Court of Appeal on the contentious issue of valuing Mixed Injuries in the Official Injury Claims portal was handed down on Friday 20th January. The 16th January drew its usual media attention in being referred to as Blue Monday and could not be a better reflection in the outcome of the Judgment for defendant compensators. 
 
The two test cases in question were Rabot v Hassam and Briggs v Laditan. Both cases started life in the OIC portal, having been originally heard in Birkenhead County Court.  District Judge Hennessy in the original judgments stated that she should value the non-tariff injury, add it to the tariff award for the whiplash injury, then “step back” and make the relevant deduction to account for any overlap.
 
In the case of Rabot the injuries reported were; a Whiplash injury with an 8-10 month recovery, injury to both knees with a 4-5 month recovery and travel anxiety with a 3 month recovery period.  The award set down in the original Judgment was to apply the Whiplash tariff at £1,390 and the non-tariff element (knees) at £2,500 giving a combined figure of £3,890.  
 
A reduction to that sum was given but Judge Hennessy stressed there clearly was impact on the claimant due to the knee injury and awarded the sum of £3,100. This valuation was upheld by the Court of Appeal.
 
In Briggs, the claimant suffered a Whiplash injury with a 9 Month recovery, minor injuries to the left elbow, hips and chest and a soft tissue injury to the left knee with a 6 month recovery.
 
In valuing the non-tariff award, the judge took £2,250 as the starting point of the injury for the knee and added £750 to that to cover the left elbow, chest and hips getting to a sum of £3,000.  With the Whiplash tariff element agreed at £840 the combined total was £3,840; this figure was then reduced or “stepped back” to consider the overall award and down to £2,800. 
 
In a 2-1 majority Nicola Davies LJ, lead judgment and supported by Lord Justice Stuart-Smith, approved the approach that had been taken by the lower court however added a caveat in that 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.  As such a total of £3,500 was awarded.
 
Ultimately the question the Court of Appeal were to address was; 
 
‘how is the court to assess damages for pain, suffering and loss of amenity (“PSLA”) where the claimant suffers a whiplash injury which comes within the scope of the 2018 Act and attracts a tariff award stipulated by the Whiplash Injury Regulations 2021… but also suffers additional injury which falls outside the scope of the 2018 Act and does not attract a tariff award?’
 
The court stated the assessment should;
i)  assess the tariff award by reference to the Regulations;
ii)  assess the award for non-tariff injuries on common law principles; and
iii)  “step back” in order to carry out an adjustment, recognising that the sum included in the tariff award for the whiplash component is unknown but is smaller than it would be if damages for the whiplash component had been assessed applying common law principles.
 
The major caveat as mentioned above is that 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.
 
The practice adopted by many defendant compensators since the launch of the OIC portal has been to apply the tariff then an uplift of a few hundred pounds or so for the additional injury, this approach taken due to the obvious crossover the additional injury has on the injured person’s pain suffering and loss of amenity.  The valuation of such claims following this decision is replaced by a Tariff + Common Law valuation of the additional injury based on the JC Guidelines, then reduced accordingly for the crossover of symptoms.
 
This will severely impact the awards that claimants will receive going forward and although the majority decision stands it does not provide much clarity for either defendant or claimant to understand on how to address the issue of avoiding ‘over compensation’. It provides a grey area which will no doubt see more litigation in such cases in order to assess what level of reduction should be applied. 
 
Taken as a whole, 2/3 of claims already in the OIC portal are mixed injury, this gives a total of 230,000 live cases. If this decision were to add £1,000 to each settlement we would see an increase on indemnity spend across the market of £230m, not the outcome the government had planned when introducing these reforms in order to tackle the problem of whiplash claims.  
 
Further issues remain for defendants - the presentation of mixed injury claims is likely to see more arguments on whether the claim value exceeds £5,000 and therefore can enter the MOJ Claims Portal (with recoverable costs). Defendant handlers must certainly look to argue this point from the outset.  We are likely to see an influx of medical reports having been withheld awaiting the outcome of the decision, placing pressure on claims departments themselves.
 
Causation and the plausibility of the additional injuries having been suffered with the impact reported will also need to be closely examined. Support of offers made that may well be heard at Court will need to be robust, having the claimant attend any hearing in the Small Claims Track would be a must in contested cases, ultimately driving up the life cycle of a claim and seeing more stress placed on an already over-burdened court system. 
 
What also has been lost in this process is the fact the reforms and subsequent development of the OIC portal were introduced to create a simplified process for direct claimants to present claims without the need for legal representation.  This so far to date has not occurred, with claimants often finding the process itself complex. The  judgment and the uncertainty of the valuation of genuine mixed injuries has not helped this position at all. 

Gallagher Bassett is committed to providing a first class claims handling service, settling claims both fair and equitably and will continue to provide updates on any strategy developments to our clients via the GB Strategic OIC portal working group.  

Sign up to GB Advantage