OIC – A Round-up as of 31st March 2023
We are approaching the second anniversary of the implementation of the ‘Whiplash Reforms’ and the introduction of the OIC Portal.
We are approaching the second anniversary of the implementation of the ‘Whiplash Reforms’ and the introduction of the OIC Portal. Perhaps a timely opportunity to review how these changes have been reflected on the ground.
The intention of Parliament:
| “The changes are designed to reduce the unacceptably high number of whiplash claims made each year, with more than 550,000 in 2019/20 alone, which will allow insurers to cut premiums for millions of drivers.
“The reforms include a new user-friendly online portal for road traffic accident claims under £5,000 – simplifying the process and removing the need for expensive lawyers. They also introduce a ban on settling whiplash cases without medical evidence – a practice which has opened the door to fraudulent or embellished claims. “The new online portal will revolutionise how claims are made, creating a system that is simple and more efficient to use. It has been tested by professionals in the industry and reviewed to ensure it is easy to understand – with user-guides available to explain how to make and progress a claim at every stage. For those who require additional assistance, a helpline will also be available.” |
Consequential legislation and other provisions:
- Civil Liability Act 2018 – here
- Whiplash Injury Regulations 2021 (including tariff) – here
- The Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (The RTA Small Claims Protocol) – here
- CPR PD27B – here
- Plus, various amendments to other CPR provisions and the RTA Protocol.
What do the OIC statistics show so far?
- Between May 2021 and January 2023, the OIC Portal registered 451,777 new claims.
- Of these, 91% were registered by professional representatives.
- 96% of all claims involved whiplash (either tariff only or mixture of tariff and non-tariff injuries).
- 66% of all claims were “mixed injury”.
- 84,893 claims (19%) had settled by January 2023.
- The average settlement value for PSLA was £1,019 for represented claimants and £1,028 for unrepresented claimants.
- 23% of claims involve “exceptional circumstances” or “exceptional injury” or both.
Full OIC Monthly Claims Data – here
Early court decisions
The courts were relatively untroubled by OIC cases until the summer of 2022. Then followed a flurry of hearings, many of which involved “mixed injuries”. Most defendants in such cases argued for a “tariff plus” approach (determining the appropriate tariff award and then building on that figure to reflect any additional pain, suffering and loss of amenity caused by the non-tariff injuries). This did not often find favour. Most courts adopted the approach of (a) determining the appropriate tariff award, (b) assessing the non-tariff injuries separately according to common law principles, (c) adding the two together, and then (d) making any necessary adjustment as per Sadler v Filipiak [2011] EWCA Civ 1728.
The Court of Appeal
Rabot and Briggs were appealed and leap-frogged to the Court of Appeal. The hearing took place on 30th November 2022 and judgment was handed down on 10th January 2023.
In a majority decision (2:1), with the Master of the Rolls dissenting, the court found:
It follows that the approach of the court to an assessment of damages in respect of a tariff and non-tariff award where concurrently caused PSLA is present is that the court should:
(i) assess the tariff award by reference to the Regulations;
(ii) assess the award for non-tariff injuries on common law principles; and
(iii) “step back” in order to carry out the Sadler adjustment, recognising that the sum included in the tariff award for the whiplash component is unknown but is smaller than it would be if damages for the whiplash component had been assessed applying common law principles.
There is one caveat, 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.
The defendant insurers were refused leave to appeal. An application has been made to the Supreme Court and a decision is awaited.
Costs: The latest area of conflict
Recoverable costs on the Small Claims Track are restricted. However, CPR27.14(2)(g) provides that the court may make an award of costs which exceeds the usual fixed costs where a party has behaved unreasonably:
Some claimants have argued that defendants are behaving unreasonably in OIC cases by making what turns out to be a low offer in respect of the non-tariff element of injury (or a nil offer) and that additional costs should be payable as a result.
There have been conflicting first instance decisions on the point.
Birkenhead County Court (3rd March 2023) decided that the test for unreasonable behaviour had not been met by a defendant making what was subsequently found to be a low offer. A full copy of the judgment can be found here.
St Helens County Court decided otherwise – here – published 9th March 2023.
Have the Reforms achieved the stated intention?
- The overall number of ‘low value’ RTA claims being registered has fallen since the introduction of the OIC Portal. However, this trend has been apparent over the last decade and there is no reason to suppose it would not have continued absent the Whiplash Reforms.
- “Removing the need for expensive lawyers” does not appear to have transpired. More than 90% of claimants remain professionally represented.
- There must be doubt in some minds. The House of Commons Justice Committee, less than two years post-reforms, has announced an inquiry into the effect and operation of the Whiplash Reforms and the OIC Portal. A call for evidence closed on 17th March 2023. The outcome is awaited.
All feedback/questions welcome: nicolahunt@atlanticchambers.co.uk
