Whiplash Reforms: Official Injury Claim Service faces criticism

Elements of the whiplash reforms which became law via the Civil Liability Act 2018 regime include the new Practice Direction 27B and the launch of the Official Injury Claim Service (OIC).

Since the OIC’s launch on 31 May 2021, there has been growing concern that it has not thus far achieved its desired aim of making low-value personal injury claims accessible to litigants in person.

The latest data covering the period from 1 December 2021 to 31 March 2022 revealed that of the 95,266 claims made in OIC during that window, 91% of claimants had representation, with roughly 75% using legal representation. Before its launch, there had been estimates that it could be roughly 30% of claims in OIC being brought by litigants in person; the actual figure has been 9% so far.

This appears to run contrary to one of the key goals of the reforms, of enabling unrepresented claimants to take charge of their own claims. Under the Whiplash Injury Regulations 2021, such injuries lasting up to 2 years which are sustained by drivers and passengers in road accidents since 31 May 2021 are subject to a fixed tariff according to duration, which is lower than the damages amounts which were often awarded prior to the reforms.

Insurers and legal representatives remain without binding authority as to the approach to be adopted to so-called ‘mixed injuries’, involving both a whiplash injury to which the tariff-based system has applied since 31 May 2021, as well as a non-whiplash injury which is not subject to the tariff.

The introductory note within the recently-published 16th Edition of the ‘Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases’ confirms that mixed injuries is an area where ‘further guidance will doubtless be provided by the courts in due course’. Of the most recent 4 months, 64% of claims started in the OIC portal fell into this category. It is possible that their resolution may be delayed pending a binding decision.

Since inception, only 209,442 claims have been registered in OIC, compared with 650,000 road accident claims having been issued in the 12 months pre-pandemic. This has given rise to concerns that the stark reduction in the number of claimants bringing claims is partially attributable to unfamiliarity or difficulties in using OIC. Industry figures have asserted that the reduced traffic volumes on the road during the Covid-19 pandemic cannot account for such a drastic drop-off in the number of new claims being brought.

OIC for its part has pointed to the fact that the portal is in its relative infancy, saying that it was too soon to draw meaningful conclusions from the data which has been published thus far.

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