On 31st May 2021 the Official Injury Claim (OIC) portal was launched alongside a fixed tariff of compensation for whiplash injuries lasting up to two years. The portal only applies to those injured whilst travelling as an occupant of a motor vehicle.
Long before the reforms were introduced serious concerns were raised by claimant organisations as to whether these changes would mean a lack of support for injured persons, and ultimately a limit on access to justice. The portal was designed for individuals to bring their own injury claims without the need for legal representation (referred to as litigants in person). A cornerstone of the court process is that the parties must be kept on an equal footing, but can this be true for injured claimants forced to represent themselves, claiming against insurance companies who are not independent, and who stand to benefit from claims being settled for as little as possible? The portal is limited to injury claims valued at up to £5,000, but can claimants be expected to know what the value of their claim is likely to be? Furthermore, will individuals feel confident enough to bring their own claims, or will they be deterred from claiming at all?
The latest data published by OIC which covers 1st December 2021 to 31st March 2022 seems to suggest that these fears raised may have become a reality. Of the 95,266 claims made in this period, 91% came from people with legal representation, with around three quarters still using a law firm. The number of claims entered into the portal indicates that new claims are down over 50% compared to the last full year before the Covid-19 pandemic, despite the Department for Transport confirming that road traffic volumes are at near pre-covid levels. This enormous drop in claims is a concern and would seem to suggest that injured claimants are choosing not to claim, whether that be due to feelings that the compensation recoverable is not worth the effort, or because they find the claims process too daunting. The Ministry of Justice have previously been criticised for releasing a lengthy 64-page guide for litigants in person trying to navigate the system. This hardly sounds like an easy-to-read ‘how to’ guide.
It is a real concern that many injured claimants will not know what their claim is worth and may not fully understand the compensation they are entitled to. This can be difficult to assess at the beginning of a claim, even for experienced solicitors, as it will depend on the type of injuries suffered, the severity of those injuries, and how long they last. Although tariffs have been introduced for whiplash injuries (soft tissue injuries to the neck, back or shoulders), this is not the only compensation available. As with all other personal injury claims, those injuries which are not whiplash in nature fall to be valued based on the Judicial College (JC) Guidelines, which have recently been increased in line with inflation. By way of comparison, a ‘minor injury’ with a full recovery within three months attracts an award of £2,450 when valued using the JC guidelines. However, for occupants of motor vehicles, a whiplash injury with a recovery of three months will attract just £240. An extra £20 is available if there were associated psychological symptoms which also recovered within that period.
Earlier data released by OIC indicated that claims being brought by litigants in person were being settled more quickly than those with legal representation. This could be taken as a sign that the portal is working as intended, but on the other hand, it could be a worry. Are all steps being taken to ensure litigants in person are receiving the right level of compensation? Or are litigants in person less likely to challenge awards and seek further medical investigations when needed?
One major issue which continues to exist since the launch of the OIC one year ago is in relation to claims involving both whiplash and non-whiplash type injuries, termed ‘mixed injuries’. There is no guidance available as to the correct way to value these claims, therefore neither claimant solicitors nor defendant insurers are able to provide definitive advice on the issue. In view of this, litigants in person are surely even more unclear. The recent data confirms that the majority of claims (64%) entered in the portal from December – March fall into this category, but there are no figures to confirm how many of these claims have settled. A ‘mixed injury working group’ has been set up to find suitable test cases and help them reach the Court of Appeal, which will provide binding court decisions on how these claims should be valued. Until that happens, offers are being made and either accepted or rejected without proper guidance. Unfortunately, this could mean that claims are being under settled, possibly by a significant sum. The earlier example given shows a disparity of almost two thousand pounds between awards depending on whether it is a tariff-based whiplash injury or a non-tariff based injury. This highlights the great importance of understanding the different ways to value a claim and how to implement them. Settlements are full and final so it is important to make an informed decision.
Another important fact to remember is that, although the tariff awards shown on the OIC guide are limited to £4,345 for a 24 month injury, this is not a cap on compensation. These figures only relate to whiplash type injuries, with non-whiplash injuries being valued separately. The tariff also only applies to symptoms which recover (or where a medical expert considers they will recover) within a period of two years. Injuries with a longer prognosis will also attract higher awards.
Unfortunately, the new rules are not easy to navigate and further guidance is needed as soon as possible to help all those using the system to properly value and settle claims, especially litigants in person who do not have the benefit of legal advice and expertise.
If you have been injured in a road traffic accident our specialist personal injury team can be contacted on 0161 696 6235.
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