Gallagher Bassett's Technical Director, Andy Sewell provides an update on the Whiplash Reforms: 

This week the Official Injury Claims Portal released their second MI pack detailing the claims presented from 1st September to the end of November. The highlight information is outlined below as we look to understand the current position and impact of the reforms. Although settlement numbers remain relatively low, we are beginning to see the trends appearing. The full report from the OICP can be accessed here Claims data (officialinjuryclaim.org.uk).

RTA claims presented in Claims Portal (claims above £5000 or for other exempt claims) have dropped off around 90,000 or so compared to the same period (1st Sept – 30th Nov) in 2020. We have not seen this number of claims presented into the OICP and the combined number of claims is still below the level of claims received into the Portal in 2019.

Representation & Injuries Presented

As per our previous update in September the split of represented v unrepresented claimants remains at circa 90% of claimants having representation. This mirrors our own experience and shows how claimant lawyers business models have been adapted to cater for the changes, as mentioned previously this may lead to an issue surrounding the types of injury claims being received.

Of the claims presented we have a slight increase to 96% (94% previously) of claims presented have an element of whiplash (awards covered by the new tariff) with 65% (up from 61%) of all claims having an additional injury element to the claim or a ‘mixed damages claim’ as the term is now known with only 33% of claims being a tariff only claim. The trend and as we discussed extensively prior to the reforms coming into play of claimant law firms looking to present mixed injury claims in order to raise the level of damages and in turn increase the potential for either obtaining recoverable costs from the defendant or the costs claimable from the claimant or LEI accordingly.

Handlers will need to be vigilant in the approach to both causation of additional injuries as well as the valuation of the same as this will be the battle ground in the coming months and something the mixed injury working group is tasked to look at.

Exceptional Circumstances or Exceptionally Severe Whiplash

In this quarter of data 2,545 unrepresented claimants requested an uplift for exceptional injury, exceptional circumstances, or both in the reporting period. This equates to 40% of the 6,233 unrepresented claimants. 14,467 represented claimants requested an uplift for exceptional injury, exceptional circumstances or both. This equates to 23% of the 62,126 represented claims made.

This is reflective in the fact a claimant’s own perception of the injury they sustain and completing the online notification themselves may well be considered more server prior to speaking to a legal advisor well versed in personal injury settlements and having that form completed for them.

Of interest is the fact that a far higher proportion of represented claimants present claims for mixed injury, yet the reverse is true when looking at claims for exceptionally severe injury.

Claims Exiting & Liability Decisions

Of the total number of claims received, 7,184 (6%) have exited the portal for a reason other than settlement. Claims can exit the OIC process in a variety of different circumstances. 49% of represented claims however have exited due to the defendant stating there are complex matters of law involved, one of the issues with the OICP has been the inability to reject a CNF as can be done in the Claims Portal, it may well be that defendants and insurers are using this option to circumnavigate the lack of this option being available.

In total 42,131 cases have had a liability decision made. 34,506 (82%) have had liability admitted in part or in full by the at-fault compensator. Of this number 81% of represented and 94% of unrepresented claims have had liability admitted in part or in full.

In addition, causation was disputed in 1,479 claims (1,478 represented and 1 unrepresented). This represents 20% of all claims exiting the OICP but only 4% of all claims presented where a liability decision has been given. Compensators therefore at present are accepting the injuries presented without having the medical expert consider causation on examination.

Award Levels

Future data releases will include information on average settlement values for both tariff and non-tariff claims. However, this data has not been included in this second release due to the limited number of claims settled to date. If volumes are sufficient, the OICP will start to release average values in the next release of data.

Claims Portal continues to release settlement data, as shown below average damages have continued to rise since the introduction of the OICP, with November’s average settlement at £3,427 as claims below £5000 begin to close this average will continue to rise. What is interesting and has to be monitored is the comparison of settlements in Claims Portal against the OICP to see whether the intention of bringing down low value damages award levels comes to fruition, or if the high level of mixed injury claims drags that average up potentially to over the averages seen prior to the OICPs introduction.

Mixed Injury Working Group

There are no updates provided at present to the ongoing work being undertaken by the Mixed Injury Group

EL&PL Claims impact

One concern raised with the introduction of the reforms was the impact on EL&PL claims and whether we would see claimant law firms historically focused in whiplash move into EL&PL injury claims, numbers of new claims however have remained relatively static with a slight increase seen over the year perhaps driven more by the opening up of society than the reforms. Average monthly EL claims border around the 2,500 mark with PL in and around 3,500 monthly claims made.

Award Levels

EL settlement averages have bordered around the £4,500-£4,700 mark for most of the year, November however saw a jump to an average of £5,028, this is the first time the EL damages award has crept over the £5,000 mark and it will be interesting to see if December and January continue or whether we are seeing the pre-Christmas offers being made and accepted on higher value claims.

Conversely PL settlements have hovered around the £4,900 mark since a high in August upwards of £5,100.

The monthly averages can be seen in the charts below.

As always we will update as and when further information is available and please do not hesitate to get in contact if you have any questions on the above.