Background
The Civil Liability Act 2018 (CLA) ushered in a sea change for the personal injury market, taking whiplash out of the usual method of injury valuation to a tariff system worth much less than the original Judicial College Guidelines set out for neck, back and shoulder injuries sustained in a road traffic accident. The CLA also increased the small claims track limit to £5000 and took the majority of whiplash injuries, under two years duration, out of the cost-bearing arena. This in turn has led to a substantial change in behaviour from Claimant solicitors who would have previously pursued whiplash cases for an easy payday, in terms of costs, with little effort needed.
In May 2021, the Official Injury Claims (OIC) platform was launched and the CLA 2018 was brought into effect. Injuries would now be divided into tariff (whiplash) injuries and non-tariff even before the new system launched, Defendant solicitors and their clients feared an increase in non-whiplash injuries and a difficulty in valuing a combination of the two. This proved to be the case, in no uncertain terms.
The key to retaining market competitiveness in such a scenario is breaching the £5000 limit and removing the claim from the OIC process with the only real route for doing so was to focus on the non-tariff injuries. We now have final clarity following the Rabot journey all the way to the Supreme Court, with the Sadler overlap deduction being maintained but with the caveat that the total award could never be less than the non-tariff injury alone.
Among such categories of injury the biggest concern comes from those injuries which are completely subjective in nature. DWF has seen a significant rise in PTSD, elbow, wrist and knee soft tissue injuries without apparent cause, concussion claims and then presenting perhaps the most difficulty, sensory injuries, namely tinnitus, vertigo and hearing loss claims. These sensory injuries had rarely arisen in the RTA claims arena prior to the reforms.
What is Tinnitus?
Tinnitus comes from the Latin “tinnire” and means “to ring”. But tinnitus by itself is a catchall phrase to mean any perception of sound heard by a person that does not correspond to an external source. Meaning for whatever reason, the noise is in the Claimant’s head and we have no objective means to test it.
Ringing isn’t the only noise; it can also be buzzing, humming, whistling, scratching, hissing or any combination. We have had cases where the noise has been referred to as “birds chirping”. The tinnitus can be intermittent or constant, in one ear or both and can be permanent or temporary.
A large percentage of the population will naturally suffer with tinnitus as they get older, and according to Tinnitus UK (the largest charity in support of tinnitus sufferers), one in seven adults have persistent tinnitus. This presents an obvious concern of whether the tinnitus is accident-related or whether it is a pre-existing condition being, honestly or dishonestly, misattributed to the accident.
These concerns are not new, even the formative papers relating to tinnitus such as that of McCombe et all [2008],a paper cited in nearly every ENT report and established the tinnitus severity grading system, had already noted the concerns with tinnitus and its subjective nature by stating:
“Thus one flaw in all the grading systems…is that they allow the subjective view of the patient who has catastrophised their tinnitus…due to psychological factors or a desire for compensation to express that view within the grading system unchecked".
What are these claims worth?
Along with changes to the law and procedures around it, a new language has developed including layering for the increased number of, often unnecessary, medical reports and ballooning, for claims which start off in one of the low value portals and end up in the Multi Track (or Intermediate Track going forward).
The subjective nature of the injury presents a great opportunity for claims to be layered. In addition, as tinnitus is a sensory injury the Judicial College Guidelines provide large ranges of damages for tinnitus with even mild cases having the potential for over £10,000.00. They can also be a great stepping-stone for some firms to further layer the claims and balloon them in value. The average claim we find comes in with a Claimant valuation at around £25,000.00.
The stepping-stone of tinnitus often means referral to tinnitus retraining, an enhanced form of CBT treatment, in cost as well as substance. The ENT experts may also recommend hearing aids, white noises generators or masking devices used to reduce the impacts of the alleged tinnitus. Often you can get the white noise generators and masking devices through free or low cost apps on your phone. The hearing aids cause most of the concern; tinnitus is usually a permanent condition and may come with permanent alleged hearing loss – Claimant firms quite often plead a schedule of loss with replacement hearing aids every five years or so, for life. This alone can push claims to a higher track. In our experience hearing loss is rarely caused by a road traffic accident and may indicate a pre-existing tinnitus condition or something else underlying.
We have seen a truly significant rise with these claims. Tinnitus cases didn't just spring up in the last few years, they’ve been around for a long time but were often a rarity and when cases appeared, they would often be sent to Defendant complex teams to deal with. Often these days, they are now being sent to fraud and causation teams.
Nowadays low to medium severity collisions with soft tissue injuries are often accompanied by injuries like tinnitus, with ENT reports, psychological reports and even neurological reports. There are, in general, three potential routes to tinnitus being caused by an RTA: head injury, acoustic shock and whiplash. Airbag detonation presents a type of “get out of jail free” card to allow tinnitus to be added to claims via acoustic shock without risk of any significant push back; checks should be made with the Defendant regarding whether their airbags detonated and whether they saw the Claimant's airbags or not.
With robust defences, a forensic approach to the available evidence and going back to the basics of causation we are achieving consistent successes in defeating these claims and securing findings of fundamental dishonesty while exposing concerning ENT experts along the way. Where this isn't possible significant quantum reductions often are made.
The approach involves not only defeating claims individually with investigations into the Claimant but also a more holistic disruption approach, investigating agencies and parties of concern including medical experts and rehabilitation providers. We undertake a forensic analysis of the accident and the alleged mechanics, taking a fine comb to all available records often finding alternate causes of tinnitus or hearing loss which the experts have failed to consider. We have seen cases where records show the Claimant has something as simple as a hearing infection or wax in the ears being alleged to be RTA tinnitus only for the claim to discontinue once this has been pointed out to the experts via Part 35 questioning. Bringing or even just threatening to bring these experts to trial often leads to success, especially where we have our own positive evidence disputing the existence of tinnitus from our own expert.
Defeating claims such as these can save up to £50,000 including costs and even more where future hearing aids are presented. It seems that judges are listening as the courts become more aware of the issues involved with such claims. This is a quote from the recently retired HHJ Gosnell in one of his last cases, a County Court decision Pompova v Markerstudy [Unreported, 2023]:-
"I feel a generic concern about tinnitus and the fact that this is the third case of tinnitus I have dealt with in the last three weeks. Prior to that, on the Bench for 25 years and prior to that as a specialist personal injury solicitor for 15 years, the only cases I have dealt with involving tinnitus involved noise induced hearing loss. It was extraordinary for someone who suffered a soft tissue injury in a minor road traffic accident to suffer from tinnitus. For reasons, which I am not going to speculate in this judgment, this has suddenly become very popular."
So what? What does this mean for insurers?
- Tinnitus claims often take standard RTAs into the cost-bearing arena
- This can mean Fast Intermediate or Multi Track allocation and many thousands of pounds
- The knock on medical reports and treatment are layering in full effect
- Challenging such behaviour is key as unchecked it will expand to other personal injury areas
- Forensic examination of causation and medical records can lead to substantial savings and demonstrate a robust approach to claims handling.
Authors: Nathan Jones and Jewels Chamberlain.
