Dixon: Erosion of damages contained for now
Claimant representatives have called for Official Injury Claim cases (OIC) stayed pending yesterday’s Supreme Court ruling on mixed injuries to progress quickly now that there is certainty.
The justices steered a middle course on valuing the pain, suffering and loss of amenity in cases featuring both injuries covered by the whiplash tariff and those that are not, requiring judges to put a figure on both and then take a step back and adjust the total, if necessary, to avoid double recovery.
The insurance industry’s appeal was for a more restrictive approach and the claimants’ appeal for a more liberal. Both were rejected, with existing common law principles applied, as they were at first instance and in the Court of Appeal.
The Association of Personal Injury Lawyers (APIL) and Motor Accident Solicitors Society (MASS) intervened together.
APIL secretary Brett Dixon said: “The erosion of damages for personal injuries has been contained to whiplash, for now. The Civil Liability Act was only ever about whiplash.
“The Supreme Court is clear that the principle of full compensation is maintained for the other, non-tariff injuries. This is the final word on the issue, giving injured people and their representatives some much-needed clarity.”
Mr Dixon maintained that, despite the “positive” result, the whiplash tariff itself was “grossly unfair”.
“The language used by the Supreme Court highlighted that the tariff amount was not full compensation and was, in fact, undercompensating.
“It is now over to the OIC to clear the backlog of cases which have stalled while this ruling was pending. Claims can progress and injured people can finally receive their compensation.”
MASS chair Sue Brown declared that “common sense and the common law have prevailed”.
“While the level of tariff damages remains far from fair, claimants can now be confident in recovering fair compensation for the non-whiplash injuries they sustain in low-value motor accident claims.
“With uncertainty and delays having plagued very many claimants waiting for a fairer settlement following motor accidents, we now hope that the judicial system can begin working through the backlog of cases and that justice can finally be dispensed.”
The Association of British Insurers was behind the appeal and a spokeswoman said it was disappointed by the decision.
“Given the dissenting judgment from the Master of the Rolls in the Court of Appeal, it was an important point of principle to take the decision to the highest court in the UK.
“The outcome risks undermining the intention of the whiplash reforms. Motor insurers are doing all they can to keep prices as competitive as possible but this will only increase the cost pressures they’re facing.”
Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations, described the outcome as “a sensible middle ground which protects consumers both as injured parties and as policyholders”.
He welcomed the speed with which the Supreme Court ruled – five weeks after the hearing – meaning “the huge backlog of cases can now start to be cleared and people get the compensation they are due”.
Moreover, “insurers will be able to reserve more accurately and use this to bring average premiums down from their record highs”.
Mr Maxwell Scott added: “It is now down to the wider sector to work together to agree the frameworks which will allow claims to settle quickly. Importantly, it will also take many potential claims out a courts system which is struggling badly.”
But he warned that it would be “naïve to think that insurers will give up their long-running campaign to remove general damages entirely in lower-value personal injury cases”.
Last month, the Association of British Insurers – which was behind the appeal – urged the extension of the fixed tariff beyond whiplash injuries.
Stuart Hanley, head of legal practice at leading personal injury firm Minster Law, described the ruling as “balanced and pragmatic”.
“This eagerly awaited decision should both allow stayed cases to quickly progress and speed up settlement of new claims, which will ultimately benefit both consumers and insurers and in turn hopefully help deliver the streamlined process the government whiplash reforms promised but have so far only delivered in part.”
Andrew Wild, head of legal practice at Huddersfield firm First4InjuryClaims, added: “The public was promised simpler, swifter access to justice when the whiplash reforms were launched nearly three years ago, and it is time for insurers to deliver on this mandate by clearing the backlog of claims that were awaiting this ruling.
“Vulnerable claimants deserve better and, now the judgment has been delivered so promptly, whether insurers like it or not, we can work together to ensure they receive the compensation to which they are entitled.”
Ian Davies, a partner at top defendant firm Kennedys, said the ruling provided “welcome clarity”.
He said: “The unanimous decision from the Supreme Court provides absolute certainty moving forward on the approach to be adopted. The caveat, included by Nicola Davies LJ in the Court of Appeal, remains and will be a significant boost to claimants considering cases in light of the new 17th Edition of the Judicial College Guidelines.”
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