Whiplash Reforms: What Happens with Mixed Injuries?
The much-publicised Whiplash Reforms have now been introduced, but instead of definitively answering questions, they have in fact created more.
Winn Solicitors’ Group Associate Director and Head of Litigation, Adam Thorpe, believes an issue that stands out after reviewing the reforms and their implementation surrounds the multiple injury aspect of a claim.
If you were injured following an accident that wasn’t your fault, you may have sustained multiple injuries, with whiplash – a soft tissue injury to the neck and/or back, for example – being just one of the injuries.
“Where there is a whiplash injury and a separate site injury, to say the ankle, this is termed a ‘mixed injury’ or ‘tariff plus’,” he said when discussing the new reforms, which restrict compensation to pre-determined amounts depending on the length of time the injury is expected to last for and where it falls under the £5,000 small claims limit.
“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?
“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 above is 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 is crucial that the County Courts take a consistent approach pending the resolution of the test cases and that claims are not stayed in large numbers pending the outcome. Everyone in the industry will have a close eye on how this process develops and the outcome of the appeals.”
These comments were taken from Adam’s blog in the Motor Accident Solicitors Society (MASS) Magazine.
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