lady justice

ACSO report: Medical data undermines mixed injuries ‘epidemic’ claim

Posted on Thu, 15/02/2024

Insurers have exaggerated the number of multiple-injury claims being made in the Official Injury Claim (OIC) portal, according to new medical reporting data published by the Association of Consumer Support Organisations (ACSO).

The ACSO report, ‘Assessing Mixed-Injury Claims in the Official Injury Claim Portal,’ explores the number of injury cases submitted to the OIC portal where there is a whiplash plus other injuries, and comes shortly before the Supreme Court hearings on 20 February 2024, in the cases of Rabot v Hassam and Briggs v Laditan [2023] EWCA Civ 19.

Data from leading medical reporting organisations, which work with both claimant law firms and defendant insurers and are anonymised for reasons of commercial confidentiality, show the following:

  • MRO 1 data show that the proportion of mixed-injury claims was around the same in 2019 as 2023, i.e. before and after the launch of the OIC. However, there has been an 8.3 per cent increase in the number of non-whiplash injuries reported per medical report;
  • MRO 2 data also reveal the number of mixed-injury claims has remained fairly consistent from Q1 2019 to Q4 2022, but again that the number of injured areas saw an 8.6 per cent increase from the data period; and
  • MRO 3 data, which are collected differently, suggest the number of mixed-injury claims rising from 45 per cent of reports in 2019 to 58 per cent in 2023, with the number of injured areas increasing by 15.8 per cent over the period. The higher numbers here reflect that MedCo added six additional injury categories following the implementation of the Civil Liability Act in 2021.

Matthew Maxwell Scott, executive director of ACSO, noted that insurer bodies the ABI and FOIL both claim mixed injury claims had risen “very significantly” since the OIC began its work in 2021. They point to OIC data that shows 67 per cent of submitted claims were mixed injuries.

But in response he said that insurers are comparing “apples with pears.”

He said: “The reality, as the medical data illustrates, is more prosaic, and is down to the impact of the tariff and to big decreases in the number of minor claims being made since 2021.

“The MRO data is the most objective available as it looks at settled claims only and cites reports that actually describe the injuries.”

Turning to the data, he explained: “Although all MROs point to a small increase in the number of injuries per claim of between 8 and 16 per cent, this is to be expected due to the decreased value of whiplash-only claims. This increase is also in a market which has roughly halved in size, and so represents a much smaller overall number of claims.

“Additionally, difficulty in legal funding for low-value whiplash-only claims has almost certainly dissuaded many consumers from pursuing these, particularly without legal representation.

“The information provided by the MROs show the importance of objective data in determining the narrative surrounding mixed-injury claims and their valuation. For example, the proportion of cases involving mixed injuries that have settled and the proportion of mixed-injury claims being presented on the portal will yield drastically different results.

“An 8 to 16 per cent increase in number of injuries per claim certainly does not substantiate the casually insulting idea that consumers in England and Wales are ‘a nation of weak ankles, knees and toes.’”

Mr Maxwell Scott said he hoped the Supreme Court would rule on behalf of consumers when it publishes its judgement, expected in the summer.

“Insurers have sought to re-create a panic around an epidemic of mixed injury, but objective medical reporting data does not support this assertion, and I hope the Court will take account of this new data.”

He said ACSO will also send the report to the Justice Select Committee, which is reviewing the government’s whiplash reforms and the operation of the OIC, and to others.

“Consumers have so far got a pretty raw deal from the whiplash reforms, with motor insurance premiums at historic highs and no sign so far of any of the savings motorists were promised.

“Stripping the rights from those who have non-whiplash injuries would be taking things even further, and it is not what the legislation was intended to achieve.”

Illustrative case study

A claimant suffers a 12-month neck injury with no exceptional circumstances and a 3-month minor wrist injury. The neck injury would attract an award of £1,390, whereas the wrist injury would attract an award of up to £2,450 due to being a non-tariff injury.

In deciding the correct level of compensation, a judge would ‘step back’ to carry out an adjustment, with the caveat introduced in Rabot being that the final award cannot be less than the non-tariff injury if it was the only injury suffered. Therefore, the valuation of this injury cannot be less than £2,450.

Prior to the tariff, the neck injury in this case would attract an award of up to £4,350 and would be considered alongside the wrist injury. A judge would apply the same principle as above and ‘step back’ in order to carry out an adjustment.

This example displays the significance of non-whiplash injuries since the introduction of the tariff. The neck injury prior to the tariff could be considered the main injury whereas after the introduction of the act the wrist injury would essentially be considered as the main injury.

This may explain why claimants are ensuring that each of their injuries are accurately recorded in their medical reports and therefore an increase in the number of injured areas would be expected.

Download the report