The Supreme Court’s unanimous judgment on mixed-injury claims in Rabot was widely anticipated, albeit arriving rather sooner than many had thought. The question is whether this will resolve the bottleneck of cases in the Official Injury Claim (OIC) portal and lead to faster claims resolution in future.
There are complications when it comes to valuing claims. One is the ongoing statutory review of the whiplash tariff, which closes for responses on 2 April and is likely to result in an inflationary uplift of around 20 per cent, assuming the government uses the CPI measure as planned.
Before we even discover the conclusion to that review, there is the newly published 17th edition of the Judicial College Guidelines, or JCGs, to consider. These suggest that a 25 per cent increase in personal injury compensation is appropriate.
The Rabot claim is a case study in what this might mean. It was initially valued at £1,390 for the whiplash element and £2,500 for the non-whiplash, giving a total of £3,890. District Judge Hennessy, using the Sadler principles, took a ‘step back’ and decided that £3,100 would be an appropriate sum given the overlap between the injuries. This decision was upheld by both the Court of Appeal and, as we know from this week, the Supreme Court. But such injuries could, once details of the new tariff are known, now be valued at around £3,800.
To many consumers, that might mean that it is worth waiting a little longer before making or settling a claim. Claimant representatives could also consider removing offers already made through the OIC, as the portal does not have the functionality for proposing increases. This would mean a return to an old-fashioned paper process, and risks the wrath of judges too.
Rabot itself might not be the end of the case-law complication. Section 1 (3) of the 2018 Civil Liability Act refers to injuries of “soft tissue which is a part of or connected to another injury.” It is not clear what this refers to, although it could mean that any accident which involves a soft-tissue injury connected to - but not part of - an injury to the back, neck or shoulder would be valued not by the tariff but by the uplifted JCGs.
So perhaps the road ahead is a little bumpier than hoped for. Those who believed the whiplash reforms would bring simplicity and friction-free processes to lower-value, soft-tissue personal injury claims may therefore be disappointed. Meanwhile we await news from the Financial Conduct Authority to see if insurance policyholders looking for the government’s promised savings may be disappointed too.
This blog was also published as a comment piece in Insurance Post on 5 April 2024.