Partner Mark Harvey, Head of Specialist Claims in London and Cardiff who also heads up the firm’s London office, was at the Supreme Court (20 February) to support the importance of ensuring that individuals suffering from a combination of whiplash and other types of injury receive full compensation for their ‘non-tariff’ injuries – in the Official Injury Claim (OIC) portal where there is both a whiplash injury subject to the OIC tariff and other injuries which are not.
Hugh James was instructed by of the Association of Personal Injury Lawyers (APIL) and Motor Accidents Solicitors Society (MASS) to intervene in the so-called Mixed Injuries litigation. Mark Harvey, briefing Robert Weir KC and Sam Way of Devereux Chambers led on the appeal to protect against further incursion of the common law entitlement of an injured person to full compensation for injuries sustained alongside whiplash.
Mark, a Senior Fellow and assessor at APIL, has been actively involved in advocating for the rights of injury victims throughout his career. Mark is also the immediate past UK governor of the American Association for Justice (AAJ) and the only member from Wales in the Pan European Organisation of Personal Injury Lawyers (PEOPIL).
The Court of Appeal, in the case of Hassam & Anor v Rabot & Anor, acknowledged this fundamental point in a majority decision, with the Master of the Rolls dissenting. However, the court went on to say that adjustments should be made to avoid what it considered over-compensation.
Speaking on behalf of Hugh James, following the conjoined appeal from APIL and MASS, Mark hopes the court understood the argument for upholding the principle of full compensation and shares implications for the future of personal injury claims.
Mark said:
“When the government legislated to reduce the total costs of road accident-related whiplash injuries, it deliberately reduced the damages payable for a whiplash injury to considerably below common law levels. It is fundamentally important however this should not serve to reduce common law damages for the non-whiplash injuries. One should not be left with the absurd consequence that a claimant who suffers a knee or wrist injury for example will receive less compensation when it is suffered alongside a whiplash injury then had it not been.”
Further information
The Supreme Court sat to determine how is the court to assess damages for pain, suffering and loss of amenity (“PSLA”) where the claimant suffered a whiplash injury which comes within the scope of the Civil Liability Act 2018 (the “2018 Act”) and attracts a tariff award stipulated by the Whiplash Injury Regulations 2021 (the “Regulations”), but also suffers additional injury which falls within the scope of the 2018 Act and does not attract a tariff award.
The Official Injury Claim portal was established by the MIB (Motor Insurers’ Bureau) on behalf of the Ministry of Justice in May 2021 where all claims involving whiplash from a road traffic accident must be pursued. It is a service that is designed primarily for litigants in person is in relation to road traffic accident-related personal injury claims under £5000, rising to a total of £10,000 for all losses related to the accident (to include for example loss of earnings and damaged car or property).
