A judgment from the Court of Appeal last week could be detrimental to the government’s goal to reduce the cost of motor injuries in the UK, according to global law firm Clyde & Co.
The court was asked to provide guidance on so-called mixed injury claims – claims involving a combination of injuries, with at least one falling under the Whiplash Injury Regulations 2021 and one which does not.
The Court of Appeal issued a majority ruling in the test cases of Rabbot v Hassam and Briggs v Laditan, stating that the award for non-tariff injuries should be assessed using common law principles rather than any kind of set costs. Clyde & Co said that the that this effectively incentivises personal injury claimants to continue bringing claims for trivial injuries to other “additional” areas of the body.
Prior to the whiplash reforms, Clyde & Co said that claimants would have been unlikely to advance these injury claims. However, now that the court has ruled on the degree of consolidation of general damages awards for minor injuries caused by both whiplash and other injuries, this makes it more likely that claims could exceed the £5,000 limit of the government’s new RTA Small Claims Protocol.
“Simply put, non-tariff injuries such as arm and knee injuries have become more valuable,” said Mark Hemsted (pictured above), partner at Clyde & Co. “This judgment creates the risk that the movement towards using additional injuries to bring claims will increase value and frequency to the extent that it will thwart the primary intention to reduce claim value.
“Despite Parliament legislating for fixed sums of compensation for whiplash injuries – and minor psychological injuries – lasting up to two years, one imagines that a whiplash injury with a prognosis period of 15 months coupled with a similar prognosis for minor non-tariff injuries is now likely to bring such a claim out of scope.
“If more claims fall out of scope, insurers should consider whether to anticipate prognosis creep, a higher degree of claims with multiple medical reports and, ultimately, claims incubation.”
