Strategic Update: OIC – analysis of case law to date & looking ahead to the test case

The Court of Appeal is willing to expedite the cases – both DJ Hennessey decisions, Rabot v Hassam and Briggs v Laditan - and they should be heard on either 30 November or 1 December with the possibility that judgment could be delivered even before Christmas, although the New Year would seem more likely. The defendants are represented by Darryl Allen KC and the claimants by Ben Williams KC.

Interestingly neither of those two cases came through the joint working party involving APIL, ABI and MASS set up for the purpose of taking cases to the Court of Appeal but the cases are now being dealt with under that process. Both claimants are represented by Roberts James Solicitors based in Liverpool, (with Stephen Seed of counsel before the DJ) who are not members of APIL, and they and MASS initially seemed reluctant to be involved with the two test cases. However, we now understand they have applied and been given permission to intervene on behalf of the OIC claimant group.

Rabot v Hassam – The parties agreed that the preliminary hearing could be treated as a final hearing and submssions were made by the advocates on quantum. In respect of the tariff, this  was an 8-10 month whiplash injury with 3 months travel anxiety, and it was agreed that £1,390 was the appropriate figure.

The claimant claimed additional injuries to both knees with a prognosis of 4-5 months and sought £2,500 for these injuries initially (£3,000 by the time of the hearing). No arguments appear to have been made about the mechanism of the accident as to the bilateral knee injuries, so this was what might be termed a simple mixed injuries case. The claimant did not attend.

Both parties accepted there would be a deduction in the overall award to represent the overlap in pain, suffering and loss of amenity occasioned by each injury.

In valuing the additional injuries, DJ Hennessey applied the Sadler test:

• Determine what each injury is;
• Value each injury in accordance with whatever scheme/regime is appropriate; 
• Add them together and then step back to exercise the type of judicial discretion that judges have been doing over many years; 
• Reach a final figure by making an appropriate deduction (if any).

Based on the Judicial College Guidelines, the judge valued the knee injuries at £2,500 as standalone injuries before any overlap. This sum added to the tariff took the damages to £3,890 but then considering an overlap she reduced the award to £3,100 (20.3%). Deducting the tariff from this leaves the sum of £1,710 for the additional injuries representing a discount of 31.6% against the standalone value.

Briggs v Laditan – This case was heard by DJ Hennessey on the same day that she handed down on paper the Rabot judgment, and is broadly similar but with a wider range of additional injuries. It involved a whiplash injury with a 9 month prognosis resulting in a tariff amount of £840 which both parties agreed.

Then there were injuries to the left knee (6 months), left elbow (3 months), chest (2 months) and hips (1 month). They are all the non-tariff elements. There do not seem to have been any questions raised as to how those diverse injuries were sustained. Offers of £3,000 and £700 respectively had been made pre-litigation.

Counsel for the claimant argued that whilst there should be overlap between the non-tariff injuries, there should be no further overlap with the tariff which should be ring-fenced. This is a point being appealed. He argued for a non-tariff total award of £4,000 in addition to the £840 for the tariff. The defendant maintained the offer of £700 which already incorporated an element of overlap.

DJ Hennessey applied the same principles as she did in Rabot, that the overlap should be reached by considering all injuries and therefore the overlap of the non-tariff element with that already compensated for within the tariff. It is not the overlap in numerical amount that is being considered; it is the overlap in what the amount represents that we are concerned with, namely the degree of overlap in pain, suffering and loss of amenity.

She allowed £3,000 for the totality of the non-tariff injuries, which would equate to £3,840 when the tariff amount is added. She then applied a Sadler reduction and assessed the overall award at £2,800 as there was very little evidence in this case, and she felt that majority of the pain, suffering and loss of amenity flowed from the whiplash injury and there was little additional loss of amenity caused by the non-tariff injuries. So a reduction overall of 27%.

What will the Court of Appeal consider?

This is the crucial question. Initially, it was felt that it could have been quite a narrow point on the Sadler principle, and whether the overlap could apply across the tariff or whether that was ring-fenced as a statutory award.

But with the recent involvement of APIL and MASS, despite the lack of a wider cross-section of cases with the full spectrum of issues regarding additional injuries, it is hoped that there might be some general guidance on valuing such injuries.

We take a look below at some of the other judgments that have been reported.

Kaur v Kamal was the first judgment of DJ Hennessey, and, on the face of it, positive for defendants as she concluded the arm pain was part of the whiplash injury and so made no additional award. That was on the basis the medical report stated, "The right arm pain is solely attributable to the index accident…. In my opinion this symptom is due to a whiplash injury." But the warning signs of her future approach were there because she went on to say she would have allowed £2,700 for a 5 month arm injury in addition to the tariff sum of £495, reducing the combined figure of £3,195 by just 7% for overlap to £3,000.

Mason v Pickering was similar, and DJ Hennessey was even more encouraging, where there was again arm pain. The medical evidence was that “This symptom was due to soft tissue injury”. It failed to answer the question of, “soft tissue injury to what?". As the evidence was silent, DJ Hennessey said she "cannot, for my part, fill that evidential gap", and no additional award was made.

Konut v EUI again before DJ Hennessey seemed, on the face of it, to be a similar case where the tariff was agreed at £890, but there was an additional arm injury that was the subject of debate. The medical report again indicated that the diagnosis was due to a whiplash injury, however, it seems that it was not argued that no award should be made and DJ Hennessey went on to assess the arm injury at £3,000 - £3,200 and with a reduction for overlap allowed a figure of £3,295.

DJ Hennessey's view seems to be that it is not for the court to fill the evidential gap for the claimant, whereas DJ Gray's view, stated in Khan v Watford, is that this is a quick and dirty process, and where the medical expert has simply asserted the injuries are consistent with the accident, the court should not look behind that and consider how it might have been caused.

In Cartmell v Esure however, DJ Gray made no award for headaches on the basis that they were related to the whiplash injury. The medical report recorded headaches, with a prognosis of 8 months, severe at first but moderate by examination at the 4 month stage. The medical report specified that the headaches were due to the accident and that, "in my opinion this symptom is due to a whiplash injury".

On that basis DJ Gray found that the claimant’s headaches were tariff injuries with no additional compensation due, but again indicated that "A different medical report might result in a different analysis".

So, for example, in Ziemele v Honeysett, DJ Gray concluded that he could not make a separate award for tinnitus on a sole report from a GP who stated that the prognosis was 4 months, and the ‘opinion’ on causation was "Due to whiplash injury". However DJ Gray emphasised that "a more specialist report might result in a different finding", which seems to be a green light for layering in terms of additional reports and treatment.

Needless to say, following these judgments, we have seen many more medical expert reports stating that various injuries are as a result of a separate injury,albeit the credibility as to the nature of these issues has yet to be fully explored and argued.

Turner v EUI is a concerning case where Sadler was adopted by the court. The court assessed PSLA for a 10 month wrist injury at £2,600 and a 10 month knee injury at £2,500. With the tariff award of £260, the total sum would be £5,360. DJ Gray stated, "The application of Sadler v Filipiak principles must be undertaken once all the figures for injuries have been considered from whatever source and then again after addition of the tariff award." Adopting that approach the court assessed general damages to reflect the overall PSLA in the total sum of £4,300, but it is easy to see how a combination of multiple minor injuries could lead to a case being valued over £5,000 and therefore outside the remit of the OIC.

We wait to see what the Court of Appeal will make on the application of Sadler, and what further guidance they may give on this issue which has been taxing motor practitioners and insurers for the last 18 months in practice, and at least 3 years prior to that in theory.

In the meantime, a number of cases continue to settle for tariff-only amounts when the plausibility of the additional injuries is challenged, without the need to involve the courts.

Separately a number of cases are settling for tariff only when it seems that the additional injuries are part of the whiplash injury. If defendants want to argue this point it is better to do so in the OIC Portalrather than rely on the judge permitting such an argument to be raised at the hearing. And procedurally, it needs to be remembered that if no Acknowledgment of Service is filed, whilst the defendant is able to attend the hearing, they will not be able to actively take part – certainly on the strict interpretation applied by Hennessey and Gray.

Generally speaking, if additional injuries such as headaches, tinnitus or arm pain are associated with the whiplash injury there won't be a separate award, albeit the judgments have provided some guidance in that regard!

Defendants should be alive to more claims with additional medical reports as a result of the judgments so far, and for cases to be submitted via the RTA Portal instead of the OIC where there are multiple additional injuries, on the basis that there is a reasonable expectation of recovering more than £5,000.

No cases that we are aware of have yet been properly argued in respect of causation and the plausibility of non-whiplash injuries, which will no doubt come.

We have however had a clear case showing that the courts will take a hard line where claimant solicitors do not follow the process. In DWF's case of Armitage, Seery v Aviva Insurance Limited the claimants' solicitors commenced the claims in the OIC, but when they received the defendant's denial of liability, rather than continue to a SCT liability determination in the OIC, they incorrectly issued Part 7 proceedings. We applied to strike out the Part 7 proceedings and were successful with a costs order of £4,900 and a show cause order against the claimant solicitors. Read more in our case summary.

This section should be read in conjunction with our analysis of the latest OIC claims data.

The impact on claims severity is obvious, as we should ascertain the true way of valuing such cases and what they are actually worth. On the one hand, persuading the Court of Appeal that the tariff figure is the key one and that any additional amount should be anchored to that figure will reduce the level of awards. Anything that supports the judges' approach so far and the level of overlap (whether it applies to the tariff or not) will see claims for mixed injuries valued at a similar level to pre-reform claims.

Bearing in mind the increasing percentage of mixed injury claims, close to 70% now, that is going to feel pretty unpalatable from an insurer's perspective and may make a significant dent in the planned savings from the reforms – certainly those relating to claims severity.

Whether it has everyone dusting down the lobbying agenda to push the government for a tariff on all soft tissue injuries rather than just whiplash may depend on the impact on claims frequency which is less certain.

As we have discussed in our data analysis, the main reason for the reduction in injury claims seems to be an absence of claims farming in low value motor claims. One would have thought the judgments so far would have encouraged claims farmers to renew the calls indicating that a cheque for £3,000 is back on the cards instead of a £495 tariff. That would carry with it a decent amount of costs if taking a 25% cut of damages. Will support from the Court of Appeal embolden claims farmers further?

Perhaps the main feature may, after all, be the ban on pre-medical offers. Claims farmers know they not only have to persuade someone to make a claim that they weren’t going to make, but they also need to persuade them to attend a medical examination and back up a claim for a non-whiplash injury. Those three things aren’t as easy as the days when they knew many insurers would simply make a pre-med offer.