The introduction of the OICP and Pre-Action Protocol some 12 months ago sought to tackle the issue of unmeritorious whiplash claims by introducing a tariff for such injuries and stripping out the associated legal costs.
It would be fair to say that the introduction of the Protocol has seen a reduction in the number of personal injury claims received by compensators, although it remains to be seen whether claims frequency will continue at these low levels. With reduced claims volumes, the number of medical reports received by compensators also remain at low levels. Inevitably this has impacted on the number of cases that have settled and claims moving into litigation. There also remains uncertainty as to how the courts will deal with the valuation of claims which feature both a whiplash and non-whiplash injury and what approach will be taken with cases in which liability remains in dispute.
District Judge Hennessy sitting in the Liverpool and Birkenhead County Court has taken the lead in dealing with cases in the Merseyside County Courts, introducing a pilot scheme approved by HHJ Wood QC, the Designated Civil Judge. We are aware of at least three recent decisions from DJ Hennessy which provide guidance as to how such cases may be dealt with by the judiciary.
In one of the cases the claimant sought to recover agreed damages of £495 for a tariff injury and also alleged that they had sustained a non-whiplash injury. The claimant relied on a medical report stating they sustained a whiplash injury to the neck and shoulder, along with pain which had radiated into both arms. The expert opined that “the claimant developed a moderate tingling in both arms the day after the accident. This resolved after two weeks. It was due to a soft tissue injury.”
The compensator submitted that this was no more than a whiplash injury and as such no further award could be made.
The Civil Liability Act 2018 defines a whiplash injury with the following:
(1) In this Part “whiplash injury” means an injury of soft tissue in the neck, back or shoulder that is of a description falling within subsection (2), but not including an injury excepted by subsection (3).
(2) An injury falls within this subsection if it is—
(a) a sprain, strain, tear, rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder, or
(b) an injury of soft tissue associated with a muscle, tendon or ligament in the neck, back or shoulder.
(3) An injury is excepted by this subsection if—
(a) it is an injury of soft tissue which is a part of or connected to another injury, and
(b) the other injury is not an injury of soft tissue in the neck, back or shoulder of a description falling within subsection (2).
The judge found that the medical report failed to answer the obvious question of soft tissue injury to what? If it had referred to the arm the claimant’s case would have been successful, but it did not. The court could not fill the evidential gap and as such the non-tariff injury was not proven.
In the same case, the claimant had pursued a claim for physiotherapy in the sum of £354. The claimant underwent an initial assessment for physiotherapy after receipt of an intervention letter. Whilst this letter did not provide the name of a proposed therapist, it gave assurances as to their professional qualification, geographical location and total costs which would have enabled the claimant to make a comparison of costs accordingly. In light of this, the letter was held to be an effective intervention letter pursuant to Copley v Lawn 2009 EWCA Civ 580.
On the issues of whether the intervention letter was effective and whether there was a non-whiplash injury, the court was clearly in favour of the compensator. However when considering the valuation of the non-whiplash injury, the court sided more with the claimant.
The 16th Edition of the Judicial College Guidelines provide:
Minor Injuries are injuries which are of short duration, where there is a complete recovery within three months, and are not otherwise referred to in other chapters… The awards within each bracket will be dependent on the severity and duration of symptoms. The extent to which the level of symptoms remains relatively constant will also be a relevant factor. Claims solely in respect of shock or travel anxiety in the absence of physical or recognised psychiatric injury will not attract an award of compensation.
(a) Injuries where there is a complete recovery within seven days A few hundred pounds to £690
(b) Injuries where there is a complete recovery within 28 days £690 – £1,370
(c) Injuries where there is a complete recovery within three months £1,370 - £2,450
The court found that a two week soft tissue injury to the arm would attract an award of £1,000.
In another case, the court found, obiter, that a five month soft tissue injury to the arm would attract an award of £2,500.
In the most recent case, DJ Hennessy has tackled the critical issue of how to quantify the value of an injury as a whole when considering a claim which features both a whiplash and non-whiplash injury. The court adopted the reasoning set out by Pitchford LJ in Sadler v Filipak [2011] EWCA Civ 1728. In such circumstances, they took the following approach:
1. Determine what each injury is
2. Value each injury in accordance with whatever scheme/regime is appropriate
3. Add them and then step back exercising the type of judicial discretion that judges have been doing over many years
4. Reach a final figure by making an appropriate deduction (if any)
In this particular case, the whiplash injury was agreed at £1,390. The non-whiplash injury, a soft tissue injury to the knees with a prognosis of 4–5 months, was valued at £2,500, giving an overall sum of £3,890 and reduced to £3,100 for overlap.
It is now over 12 months since the Protocol was introduced and any judicial guidance is to be welcomed. These remain first instance decisions and from one regional court only. We understand that the cases considered above will not be appealed and the intention remains to fast track cases which meet the previously agreed scenarios considered by the joint claimant/insurer group to the Court of Appeal for authoritative guidance. Whilst the number of medical reports received to date remains low, it seems likely that any medical reports which are poorly worded will continue to be challenged by compensators. It is anticipated that any evidential gaps will be plugged via supplemental medical reports. However, compensators should object to such reports as they are not justified under Paragraph 7.6 of the Protocol and, given the contents of Paragraph 7.14, claimants should not be entitled to rely upon them.
The obiter comments of the judge in providing valuations of non-whiplash injuries, can only be seen to accelerate the race to £5,000, such that claims will fall outside the Protocol and attract legal costs.
By following the decision in Sadler, the court will take a step back and use their experience to make any appropriate deductions. When doing so, they will consider whether any particular loss of amenity can be attributed to the non-whiplash injury alone. This test gives judges a significant amount of discretion and as such any deductions will be subjective in nature. Compensators should not be surprised that medical reports may become more detailed and nuanced around the impact of each individual injury in respect of loss amenity which will allow the court to make little, if any, deduction for the overlap of injury.
MedCo have already reiterated the importance of ensuring that the mechanism, onset and causative factors of non-whiplash injuries are explained within medical reports. Further explanation can be expected. Moreover, with the ban on remote medical examinations in the main returning from 1 July, there can be no excuse for medical reports which do not detail such injuries.
Compensators are well advised to continue monitoring medical reports over the coming months as there remains a clear and present danger that the well-intended intentions of the whiplash reforms will be thwarted.
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