Reaction to Court of Appeal Mixed Injuries Judgment -

pexels-karolina-grabowska-4506214 whiplash claims

The Court of Appeal has issued a judgment on the OIC portal cases, specifically mixed injuries. Here’s some legal sector comment;

Commenting on the Court of Appeal judgment, Matthew Maxwell Scott, executive director of ACSO (the Association of Consumer Support Organisations), said:

“Today’s judgment has been worth waiting for, above all because of the Court’s view that compensation for mixed injuries should reflect each injury. It seemed to us perverse that an injured person received less compensation for, say, a fracture or laceration, because they also suffered a whiplash injury. The Court prioritising the needs and requirements of injured people should be welcomed by all who believe in good consumer outcomes.

“The absence of judicial direction on how to compensate for mixed injuries in the Official Injury Claim portal has been a serious problem ever since it was launched more than 18 months ago. Today’s judgment and the certainty it creates will therefore come as a relief to many. Looking ahead we urge both claimant and defendant representatives to work together better to improve settlement times and ensure consumers are getting the service they should.

“The government’s rationale for its reforms was partly to make the process more consumer-friendly, but the OIC has been dogged with problems, including the mixed injuries position. This inevitable issue was clearly flagged to the Ministry of Justice before implementation, but ministers chose to proceed anyway. Regardless of today’s positive news, it’s not acceptable that consumers and practitioners have been forced to wait until 2023 to get this important matter resolved.”

Minster Law

Matthew Currie, Chief Legal Officer, Minster Law said: “This decision from the Court of Appeal gives much needed clarity. We at Minster Law have always sought to be collaborative and that has helped us to resolve a number of these mixed injury cases for some of our clients. Now, however, all mixed injury claims can flow more quickly through the OIC process enabling injured claimants to recover compensation in a more timely manner. It also provides some certainty for insurers and means that a potential wave of litigation can be avoided. This should help remove potential pressure on the Court system which has been struggling to cope for a long time.

“It remains disappointing that both consumers and insurers have faced uncertainty in relation to this issue until now. The policy and guidance could have been developed as part of the reform package and included in legislation; lessons must be learnt for future reforms in this and other areas, especially those which directly impact the general public.”

Claimspace

Stewart McCulloch, managing director of digital ADR provider Claimspace, said:

“The clarity provided by the Court of Appeal today means that potentially thousands of backlogged disputed cases can now be brought before the courts for resolution, although I hope many cases will be settled without litigation.

“These cases can now be arbitrated against a background of clear legal principles that were lacking until today. Our online systems are already prepared to accept disputed claims of this type. with resolution within two weeks.

“However, I am concerned that we risk a logjam of mixed injury OIC cases building up very soon at the courts. Only about 1500 disputed OIC cases have been processed by the courts since June 2021 but I understand it has taken an average of nearly twenty weeks to dispose of them. With volumes sent to court likely to increase exponentially and changes to case commencement processes in transition, we can expect to see delays at court becoming significant. This has the potential to be a calamity, so I encourage all parties to use cost effective ADR whenever possible.”

INSURANCE SECTOR COMMENT

Nick Kelsall, head of motor claims at Allianz Commercial:

“When the whiplash reforms were introduced, they set limits to compensate claimants for their genuine injuries, with the aim to deter fraudulent or exaggerated claims. However, our data shows that since whiplash compensation has been capped, we’ve received more claims for mixed injuries, which would suggest that some are gaming the system to inflate their payout.

“Motor insurers have always tried to keep claims costs down as a way to keep premiums down. That is also what the government had set out to achieve with the whiplash reforms, and in our view it remains the right approach, especially at a time of such high inflation.

“We will monitor the impact of this ruling, but we are sure we will now see further ‘gaming’ that will in effect eradicate the benefits from the whiplash reforms if this is where it ends.”

Martin Milliner, LV= GI claims director

“Today’s judgment is a hammer blow to hard pressed motorists. The ruling will undermine the intention of the whiplash reforms that were designed to pass back millions of pounds in lower premiums as a result of reduced volumes and costs of whiplash claims. Britain could now become the bruises and sprains capital of the world.”

ABI COMMENT

Mark Shepherd, Assistant Director, Head of General Insurance Policy at the ABI, said:

“This is a disappointing judgment from the Court of Appeal that lacks the desired clarity for claimants and defendants on how to value mixed injuries. It risks undermining the intent of the whiplash reforms to create a simplified and cost-effective system and opens the door to double counting of injuries that could significantly erode the benefits of the reforms for premium paying motorists.

It is unfortunate that the approach advocated by the Master of the Rolls was not adopted by the majority of the Court, as this would have provided the clear guidance that is needed whilst ensuring access to fair and proportionate compensation for claimants. In the face of rising cost pressures, motor insurers are doing all they can to keep prices competitive for customers, but today’s decision will only make it harder to keep premiums as low as they otherwise could be.”