Analysis issued in the aftermath of the Court of Appeal’s mixed injury judgement last week has argued that it could hamper the government’s attempts to maintain downward pressure on the cost of motor injuries in the UK.
The Court of Appeal’s majority ruling in the mixed injury test cases of Rabbot v Hassam and Briggs v Laditan was that the award for non-tariff injuries should be assessed using common law principles rather any kind of set costs.
According to Clyde & Co, this effectively incentivise personal injury claimants to continue bringing claims for de minimis or trivial injuries to other ‘additional’ areas of the body.
Clyde & Co went on to explain in its analysis of the mixed injury decision that claimants would have been unlikely to advance these injury claims before the whiplash reforms, which came into effect in 2021.
They set the small claims track limit for road traffic accident-related personal injury claims at £5,000, but the Court of Appeal’s added clarity for damages for non-tariff injuries increases the chances that claims could breach that.
Mark Hemsted, partner at Clyde & Co, said: “Simply put, non-tariff injuries such as arm and knee injuries have become more valuable.
“This judgement creates the risk that the movement towards using additional injuries to bring claims will increase value and frequency to the extent that it will thwart the primary intention to reduce claim value.”
He continued: “Despite Parliament legislating for fixed sums of compensation for whiplash injuries—and minor psychological injuries—lasting up to two years, one imagines that a whiplash injury with a prognosis period of 15 months coupled with a similar prognosis for minor non-tariff injuries is now likely to bring such a claim out of scope.
“If more claims fall out of scope, insurers should consider whether to anticipate prognosis creep, a higher degree of claims with multiple medical reports and ultimately claims incubation.”
Clyde & Co believes the parties may consider requesting permission from the Supreme Court for leave to appeal against aspects of last week’s decision, after an initial application for leave to appeal was refused.