Let’s talk fraud and non-tariff injuries with Jared Mallinson, Partner & Head of Counter Fraud, HF;
Insurers are continuing to receive large volumes of claims with non-tariff injuries (“NTIs”) added on to more familiar whiplash injuries. Data from claims submitted to the Official Injury Claims (“OIC”) Portal shows that over two thirds of claims made contain NTIs – up by 50% since 2020. Given that these would rarely have been seen before the reforms, it’s unsurprising that they are the newest challenge facing insurers.
From our own data, we’ve also identified a number of law firms submitting claims with additional physical injuries on all the whiplash claims we have seen them submit, ranging from thumb or finger injuries to ankle and leg injuries.
We first highlighted this trend a year ago, when we started to repeatedly see a new loophole being exploited by fraudsters and opportunists with rapidly increasing regularity. In the last few months alone, we have defeated seven court claims involving NTIs and seen many more successful pre-litigation repudiations.
With these additional injuries sometimes being presented in the small claims notification form and at other times presentation not being until receipt of a medical report (a required step in the whiplash claims process), a range of effective strategies is needed to combat the behaviour. Our aim is for all fraudulent NTI claims and those without merit to be dropped in full to, again, help change that overarching behaviour.
Deploying effective strategies to identify and challenge all spurious claims is an essential first step, but discouraging behaviours that lead to these unmeritorious claims in the first place is the goal. That has to be through a combination of removing the financial incentive and making it more costly to make those baseless claims in the first place.
Motor insurers are clamouring to deter these claims and we’ve seen great levels of success in overturning them in courts up and down the country when challenged. Litigation arising from these post-whiplash reform claims is just starting to ramp up, with many claims currently remaining stagnant in the OIC Portal. Consequently, results like these are likely to be the tip of the iceberg, with claimants potentially set to lose their entire compensation if they can’t prove the alleged NTIs were caused by the accident.
In one recent case example, the claimant was found to have brought a fundamentally dishonest claim, with the judge troubled by a lower abdomen claim, introduced on top of a six-month whiplash claim. The claimant told his medical expert that he enjoyed good health and had not had any significant past medical history with his stomach, despite the multiplicity of conditions and operations shown in his medical records. As a result, the claimant was ordered to pay costs of c.£8,000. In fact, in quick succession, we’ve recently secured a further six trial wins and discontinuances on NTI claims for 5 different clients, all of which helps shine a spotlight on an unintended consequence of the whiplash reforms, as well as how we’re meeting that challenge.
Collectively, without the NTIs, these claims would have been worth around £4,000 in compensation and would not have attracted any costs if settled without recourse to the courts. With the addition of the NTIs it meant that collectively they could have been worth as much as £40,000, with their solicitors entitled to tens of thousands of Pounds in costs had the claims succeeded at court.
In the case mentioned above, it’s possible that the whiplash injuries were genuine, but both the claimant and his solicitors walked away at a loss having incurred fees for medical reports, court fees and other disbursements; not to mention the time invested in pursuing the claim. A painful lesson, but one which must be repeated by insurers and their legal representatives, if, as an industry, we’re to drive a positive change in behaviours and help put an end to spurious additional injuries being claimed in the first place.
We’ve already seen thousands of these claims intimated and know that over 400,000 claims in the OIC have NTI elements. If even half of these are not genuine, and if they were paid, they would represent over £500m worth of additional cost to the industry and its honest customers.
In partnership with our insurer clients, we will continue to deter and tackle these claims. The more the industry stands up and challenges false claims, the more we can send the message that dishonesty doesn’t pay.
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