Represented Claimants in Sub-£5,000 RTA Litigation Seek ENT Reports for Tinnitus, as Inflated ‘Mixed Claim’ Fears Unravel

A fortnight ago, Legal Futures reported that ‘wristlash’ and ‘hiplash’ were becoming the ‘new whiplash’, as defendant solicitors have begun noticing a surge in non-tariff claims made through the Official Injury Claim (OIC) portal.[i]

The new, free and independent service, developed by the Motor Insurers' Bureau (MIB) on behalf of the Ministry of Justice (MoJ), can be used by individuals who have sustained minor ‘whiplash injuries’[ii] in road traffic accidents (RTA) occurring on or after 31 May 2021 (when The Whiplash Injury Regulations 2021 took effect). These individuals may seek compensation for such injuries, under the value of £5,000 (the revised small claims limit), in accordance with the table of fixed, injury duration-dependent tariffs.

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We previously discussed (here) that peers in the House of Lords had warned of a potential ‘explosion’ of quasi-bogus ‘mixed’ or ‘hybrid’ claims, whereby whiplash injuries are ‘subverted by other [minor] injuries suddenly becoming the main injury’.

Scope for undermining the reforms in this way is rooted in the court’s power, under s.3(8) of the Civil Liability Act 2018, to award general damages for pain, suffering and loss of amenity (PSLA) that reflect the ‘combined effect’ of whiplash and non-whiplash injuries.

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Whilst the Government assures that the OIC service is ‘designed to be used for mixed injuries’,[iii] the reality is that the legislation makes no attempt to address how ‘mixed/hybrid’ claims should be valued, reserving this responsibility to the courts, which will make their determination in due course.

Three periodicals of quarterly ‘OIC Claims Data’[iv] identify that 31-33% of portal claims to-date have been tariff-only claims, while 61-64% have been ‘mixed’ claims, including both tariff and other injuries.

Aside from increases in psychological injury claims and so-called ‘wristlash’ and ‘hiplash’ claims, James Babington, a motor fraud consultant at UK insurer, Ageas, points to a ‘distinct increase’ in tinnitus claims since spring of 2021. This is a trend that we predicted as far back as edition 293 (here).

Whilst litigants in person (LiP) are in part responsible for this spike in tinnitus allegations, Mr. Babington states that is more common for represented claimants to make such claims:

‘There is a potential problem from represented claimants where potentially the claimant will follow through. I’ve already seen a couple going to get ENT reports’.

He stipulated that he was not talking about ‘hundreds’ of implicated claims, as the pre-reform starting point was a ‘fairly low threshold’ to surpass, but given only 6% of the public at present are aware that a motor accident claim previously worth £3,500 is now worth just £480, only time will tell whether tactics are being extensively deployed to inflate damages dishonestly.

If so, it is ‘inevitable’ that the ‘cost of living crisis’ will generate financial incentive and exacerbate the issue.

MedCo, the system used to source medical reports for claims commenced under the RTA Small Claims Pre-Action Protocol and the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents, recently issued an alert that some accredited medical experts had been producing reports on non-whiplash injuries incurred in vehicular collisions ‘without explaining the mechanism of injury’.

In light of the fact that the 2018 Act introduces a ban on settlement of whiplash claims without first obtaining medical evidence, the significance of MedCo’s routine quality assessment of sample medico-legal reports is as important as ever:

‘Claimants do of course sometimes sustain injuries to their limbs, upper torso or head or face, and while the claimant and his representatives may well know how these injuries were sustained, it will not be obvious to the compensator unless it is explained in the medical report.  Experts must make sure that they obtain the relevant information from the claimant during the examination and explain clearly in reports how the injury was sustained in the accident’.[v]

 

[i] ‘Cost of living crisis driving non-tariff OIC claims as “wristlash” emerges’ (26 April 2022 Legal Futures) <https://www.legalfutures.co.uk/latest-news/cost-of-living-crisis-driving-non-tariff-oic-claims-as-wristlash-emerges> accessed 5 May 2022. 

[ii] ‘… an injury of soft tissue in the neck, back or shoulder …’ – see s.1(1) of the Civil Liability Act 2018.

[iii] Ministry of Justice, ‘Whiplash Reform Programme: Information and FAQ’ (7 March 2022 GOV.UK) <https://www.gov.uk/government/publications/whiplash-reform-programme-information-and-faq/whiplash-reform-programme-information-and-faq> accessed 6 May 2022.

[iv] ‘Claims data (For the period 31st May – 31st August 2021)’ (21 October 2021 OIC) <https://www.officialinjuryclaim.org.uk/media/1222/oic-data-publication-document-211021-final.pdf> accessed 6 May 2022.

‘Claims data (For the period 1st September – 30th November 2021)’ (December 2021 OIC) <https://www.officialinjuryclaim.org.uk/media/1228/oic-2nd-quarter-data-publication-document-081221.pdf> accessed 6 May 2022.

‘Claims data (For the period 1st December 2021 – 31st March 2022)’ (April 2022 OIC) <https://www.officialinjuryclaim.org.uk/media/1233/oic-dec-to-april-2022-data-publication-final.pdf> accessed 6 May 2022.

[v] ‘Operational reminder for Medical Experts – Causation’ (10 March 2022 MedCo) <https://www.medco.org.uk/news-and-updates/operational-reminder-for-medical-experts-causation/> accessed 6 May 2022.