New, complex, and "interesting" injuries are now regularly claimed, not only soft tissue additional, non-tariff injuries but the days of claims just containing spurious, whiplash injuries are long gone, and we now regularly see injuries such as tinnitus and claims for psychological injury. Claims for PTSD are now commonplace (having previously only arisen in more serious accident claims).
Prior to the introduction of the tariff, a six-month, or even a year-long whiplash, could have attracted around £5000 for PSLA. Under the tariff, that award for the same injury is reduced to barely £1500.00, prompting claimant solicitors to develop and advance spurious non-tariff injury claims and seeking that the claims should be allocated to the fast track, where fixed costs/enhanced fixed costs are available. At DWF, Jewels Chamberlain and her Injury Validation Unit have been working with insurers in fighting these claims within an OIC process, setting down industry firsts and disrupting behaviour.
Non-tariff injuries, such as those to the knee, wrists, head, chest, and feet, have become a commonplace feature in first-tier medical reports, often said to have been caused by implausible mechanisms like "jolting" or, unlikely direct trauma with parts of the vehicle.
Some solicitor models look to replace lost income by layering and ballooning claims, encouraging, complex, but subjective injuries like PTSD, tinnitus, vertigo, traumatic headaches, and eye issues to the claim, often misattributing pre-existing conditions to the accident.
Nathan Jones, a member of our Complex Subjective Injury (CSI) team, deals with tinnitus, PTSD, and vertigo claims. Nathan recently successfully defended two tinnitus claims for different insurer clients: one relating to an airbag detonation, the second a mild collision.
In both cases, Nathan employed a causation strategy that not only focused on the traditional forensic approach to the Claimant's medical evidence but also expert quality and credibility, ensuring the expert has reviewed medical records and considered clear and obvious alternative causes.
Considering medical attendances and contemporaneous reporting of symptoms is part of the usual forensic approach. In the airbag case, the Claimant had no medical attendances, including for the tinnitus, which would be unusual for a sensory injury. The expert also provided no commentary on age, employment or noisy hobbies as more plausible explanations for the tinnitus.
In the tattooist case, the ENT report was non-compliant, and the expert failed to consider the Claimant's employment or hobbies, like listening to live music, to assess noise-induced hearing loss. The expert also overlooked the Claimant's inconsistencies regarding which ear the tinnitus affected.
Our strategy attacks every angle, including the onset of symptoms, reported symptoms, the Claimant's pre-accident medical history, and the expert's approach and opinion. We challenged causation, as well as the bona fides of the expert's evidence, leading to overwhelming success in defending these claims.
It is crucial to have the right claims strategy in place; else, insurers could face a glut of exaggerated and layered claims. These claims are a gateway to further layering, as tinnitus and hearing loss often lead to claims for psychological injury, as Claimants allege psychological trauma from the tinnitus, resulting in claims for CBT, hearing aids and EDMR. Consequently, a minor collision, can balloon to a £100K plus case.
It is also worth remembering that complex subjective claims, given their tendency to be higher value, are often used to escape the OIC, avoid it entirely, or in some cases avoid the MOJ and go straight to a letter of claim. Further, many are seemingly abusing the Part 8b stay process, keeping a claim stayed in the MOJ arena while slowly gathering and layering their medical evidence, with the intention of developing a claim of £25K or more.
Setting the right defence and strategy not only leads to more consistent success and therefore consistently higher savings but also allows for stronger arguments on costs in cases where the non-tariff injury used as a way of gaining the reforms.
