On 23 February 2017, less than seven weeks after the government consultation aimed at reducing whiplash claims ended, the Ministry of Justice published part 1 of their response to the consultation. It’s said that part 2 will be published in due course, relating to the implementation of the recommendations made by the Insurance Fraud Taskforce report.
Many argued that the time allotted to provide a response to the consultation was not sufficient. It was perhaps surprising to receive only a portion of the response and ahead of schedule, given the expected date for publication was thought to be 7 April 2017.
A number of issues raised by the proposals remain unanswered, and the government will need to address them to ensure that the new process is fair and robust.
The government proposes to implement the measures on 1 October 2018 with the introduction of the Prison and Courts Act 2017 and accompanying regulations.
Avoiding displacement should be a key strategy for the government, otherwise the reforms are likely to shift the ‘problem’ from one area to another, thereby neutralising or significantly reducing any benefit realised by the new process.
Displacement will occur wherever the bar is set. That is to say, injuries that were previously within a six-month threshold will become over-six-month injuries or, worse still, could become injuries with permanent conditions. In the U.K., claims with permanent conditions currently account for no more than 2 per cent of all claims. But we know from our experience in other jurisdictions that, for example, some French motor insurers see in excess of 50 per cent of minor road traffic accidents resulting in some permanent condition or disability. In his article "Europe: Data analytics could relieve whiplash pain," Mark Strang discusses how the experience in France differs from ours here in the U.K.
Dealing in multiples
Some 85 per cent of claims include multiple injuries, and the response has not addressed how the system will work for such instances—leaving it to the government to work out the details in the regulations.
Consider the following scenario (based on a six-month cut-off):
Claimant 1 has the following injuries:
- 6-month neck sprain
- 4-month ankle sprain
- 1-month chest wall (seatbelt) bruise
Claimant 2 has the following injury:
- 10-month neck sprain
From a medical point of view, Claimant 1 could likely have sustained more significant pain and suffering and be considered more severely injured; however, regardless of which injury is deemed ‘significant’, this claimant will receive £450 compensation under the new tariff. Claimant 2, despite being less severely injured, will receive £1,190.
Also consider a case where a claimant receives multiple injuries, including a ‘whiplash’ injury, and the main injury is no longer considered to be the ‘whiplash’ injury? Will he or she be compensated outside the new process and therefore realise a higher compensation amount for the whiplash injury than if compensated under the proposed tariff?
It’s clear that if the legislation is drafted without considering multiple injuries, there will be some unintended winners and losers.
The announcement of an increase to the small claims track limit to £5,000 for RTA (road traffic accident) claims and £2,000 for all other PI (personal injury) claims will raise concerns as to the fallout from this. There has been much debate within the industry around litigants in person and the use of Mackenzie Friends, especially in the last few months. And several have expressed concerns, including the Civil Justice Council, over the potential impact to the system as a result.
The government needs to ensure that litigants in person are well informed and supported in how to bring their claim; such measures are to be worked out. The government clearly feels that MedCo and the Claims Portal have a role to play, and it will be interesting to see how matters develop.
A missed opportunity?
Other considerations aside, the proposed fixed tariff would now treat an injury with a one-day recovery the same as one with a three-month recovery. This could lead to an increased frequency in very minor claims that may not have been claimed previously, as claimants justify the bringing of their claim by virtue of the ‘entitlement’. It would also mean the claims with a relatively swift recovery would be ‘overcompensated’ compared with those with a longer recovery within the same injury duration ‘bucket’, which would be ‘undercompensated’.
An objective medical severity scale could have been one answer. Basing the award on the severity of the injury rather than the recovery duration may have proved to be the only way to fairly compensate the claimant for pain, suffering, and loss of amenity.
However, the government has set itself on a specific course, and we’ll all be watching with interest in the coming months to see how they propose to iron out the finer details within their proposals.