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Market (Injury) Update & Impact of the Whiplash Reforms – April 2024
Introduction
Please find below the analysis on the latest MI released from both Claims Portal and the OIC Portal.
Further developments have taken place in Q1 of 2024 specific to the way in which injury claims and importantly claims within the OICP are valued.
The Supreme Court handed down its judgement on the issue of valuing ‘mixed injury’, this where a claim for whiplash and an additional injury is presented. The Court dismissed the appeal and confirm that the steps to be taken are;
- Whiplash Tariff for valuing the whiplash element
- Additional injury to be assessed as per the common law position (i.e. JC Guidelines)
- Step back and deduct to allow for overlap of PSLA
- However, the final award cannot be lower than would have been awarded as common law damages for PSLA for the non-whiplash injuries had the claim been only for those injuries, effectively any deduction can only total the sum awarded for the tariff.
This decision albeit a blow for the insurance industry is not a surprise and as there has been commentary previously on the number of claims that are currently sitting in limbo within the Official Injury Claim Portal (OICP), it can be expected that many claims with additional injuries to the whiplash that may have been awaiting this judgment will now be disclosed and with c65% of all claims submitted to the OICP having additional injuries claimed, this number will not be insignificant. In addition to the above we also now have the updated 17th edition of the Judicial College (JC) Guidelines published with inflationary uplifts applied of 22%. This will no doubt put upward pressure on negotiation of settlements and pressure on defendants to justify offers being made where deductions have been made for the double recovery for the same PSLA.
The whiplash tariff itself is to be reviewed this summer as such in claims involving both whiplash and non-whiplash injuries we are likely to see more arguments stating that the valuation is above the £5,000 Small Claims Track limit currently applicable and with that the ability to recovery legal fees against the paying party.
One of the areas of importance for defendant claim handling is ensuring that causation and the mechanics of the additional injuries claimed are genuine and that the medical expert has correctly assessed the impact on the PSLA to the claimant.
The ABI has previously issued a ten step plan to combat the rising costs of motor insurance cover, part of this included amending the current tariff to be extended to cover other injuries to knees, sprained ankles and the like and also a call to increase the Small Claims Track limit in line with inflation.
Please download to read the full resource.
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