Court of Appeal provides further guidance on mixed injury cases, but what does this mean for fraud practitioners?

Since the implementation of the Official Injuries Claims Portal, the personal injury industry has eagerly awaited further guidance from the judiciary as to the applicable compensation to be awarded to claimants who have sustained a whiplash injury as defined by the Civil Liability Act and a ‘non-whiplash injury’.

Some guidance was provided on Friday 20 January by the Court of Appeal in the conjoined appeals of Rabot v Hassam and Briggs v Laditan. But what does this mean for insurers and fraud practitioners, does the judgment play into the hands of fraudsters and is the insurance industry any better off following the whiplash reforms?

Previous guidance had been provided by District Judge Hennessy in Birkenhead who held that the correct approach was to value both injuries separately but to then reduce the total award to reflect any overlap of the PSLA element between the whiplash injury and non-whiplash injury in accordance with the Court of Appeal’s guidance in Sadler v Filipiak.

The defendants had argued that all PSLA common to both the tariff and non-tariff injuries were properly compensated for by the fixed tariff, a position which was supported by minority opinion of Sir Geoffrey Vos, The Master of the Rolls.

The majority decision of Lady Justice Davies and Lord Justice Stuart-Smith largely follows the approach taken by DJ Hennessy and has provided the following guidance to courts when assessing the valuation of such claims:

1. Assess the tariff award by reference to the 2021 Whiplash Injury Regulations;
2. Assess the award for non-tariff injuries on common law principles; and
3. “Step back” in order to carry out the Sadler adjustment to avoid any over compensation. Davies LJ did however confirm one caveat, she added “namely that the final award cannot be less than would be awarded for the non-tariff injuries if they had been the only injuries suffered by the claimant”.

Comment

Following this judgment, insurers will be legitimately concerned as to what has actually been achieved by the ‘whiplash reforms’ and whether there will be a measurable impact on the reduction of fraud and the cost of insurance to their policyholders. History dictates that fraudsters will seek to monopolise on any opportunity to establish funds in their back pockets.

The question on all insurers lips will be whether this latest judgment provides an open door for professional enablers to design cynical ‘conveyor belt’ processes to maximise the bringing of non-tariff injuries as the new norm and the bringing of either entirely fabricated injuries or exaggerated injuries to maximise damages available and associated costs.

The rise of non-tariff injuries and the role of the professional enabler will continue to be measured and form part of our regular insight meetings. Early data insights are crucial to the disruption of those looking to manipulate the claims process allowing us to set pre and post litigation strategies to frustrate those claims which lack integrity before they become endemic. Our data is already showing clear trends as to the behaviours of claimants relative to their representative.