The next edition of the MASS Insight Magazine will be covering the Civil Liability Act and the forthcoming implementation of the ‘Whiplash Reforms’. Analysis of the Rules, policy decisions and whether it will benefit, or hinder, consumers has been extensive across all sides of the industry. Having been asked by MASS to write a short piece this month, it is difficult to turn away from these issues and one element in particular continues to stand out: mixed injuries.
We all know that the Civil Liability Act heralds the introduction of ‘tariffs’ or set figures for a soft tissue injury to the neck or back, etc. (whiplash). But where there is a whiplash injury and a separate site injury to say the ankle, this is termed a ‘mixed injury’ or ‘tariff plus’.
The first whiplash element is, of course, subject to the tariff but the second injury isn’t. How you as a legal representative (or a Litigant in Person) value that claim is quite remarkably still not confirmed and importantly won’t be for some time yet.
From inception and consultation around five years ago, you would think that the valuation of these claims would have been resolved. It is clearly a tricky issue, so much so that it is the intention of the MIB and MoJ to have a Court of Appeal test case heard.
The obvious question is what do you do in the meantime? And how do you avoid giving negligent advice to a client? Do you continue to practice the dark art of injury valuation overlap (that the Court of Appeal themselves wrestled with in Sadler v Filipiak)? Do you operate a strict policy of no overlap, with the tariff claim simply being added to a case valued by reference to the Judicial College Guidelines? And how do you deal with the scenario where an insurer or Judge disagrees with your chosen stance?
The preceding paragraph notably has a series of questions rather than answers, with each firm, individual or insurer left to fend for themselves and decide how to approach it. It remains to be seen whether any cases will be stayed pending Appellate authority, a scenario which I am sure most will be keen to avoid. This is not entirely a ‘claimant’ side problem either. Those Insurers being forced to deal with claims may also begin to feel nervous about the right approach and where appropriate ‘treating customers fairly’ per FCA guidelines.
The purpose of highlighting this issue to fellow MASS member firms is simply to say that it requires some thought and for a consistent policy approach to be adopted. It will likely be some time before a test case is heard and, therefore, a sensible and risk assessed approach is necessary in the meantime.