Removing the “Gray” area of causation arguments in the OIC Portal

Published 23 septiembre 2022

DAC Beachcroft in its case of Nicola Gray v Sean Holmes (DJ Hennessy, Birkenhead County Court, 31 August 2022) has redressed the balance between claimants and defendants when it comes to proving causation in claims.

Gray addressed a culmination of issues that have been identified in the OIC Portal, in particular whether and how causation arguments can be raised. DAC Beachcroft have previously addressed this in its article “The accuracy of the medical evidence in valuing OIC Claims”, written by Sarah Ramadan.

In a judgment handed down on 31 August 2022 following a hearing on 13 July 2022, DJ Hennessy addressed the following arguments that defendants have been facing:

• The ability to challenge causation, both on and without notice;
• The need for claimants to meet an evidential burden in proving the existence of non-tariff injuries;
• The effect of ambiguity or lack of explanation as to the cause of soft tissue injuries; and
• The reasonable need for triage and discharge reports in claims for physiotherapy costs.

Background

In Gray the claimant was injured in a road traffic accident on 30 July 2021, and the claim was pursed within the OIC Portal. Liability was admitted in full but quantum remained in dispute. The claimant in the Court Valuation Form made a claim for £495.00 in respect of the tariff injury and £2,200.00 in respect of an alleged non-tariff injury to the thigh and leg.

The tariff injury of £495.00 was agreed but it was contended that the claimant had not proved that a non-tariff injury was suffered. The defendant argued that the medical report described symptoms in the thigh and leg as having been caused by “a soft tissue injury” but without any further clarification as to the nature of that injury, or which ‘soft tissue’ had in fact been injured in the index accident. There was also no reference to any injury to the leg in the SCNF, nor did the doctor record any examination of the lower limbs.

Causation and the evidential burden

David Fardy and Michelle Liddy of 8 DAC Beachcroft Buildings, instructed by Cerys Lloyd in our specialist OIC litigation team, represented the defendant at the hearing and the handing down of judgment respectively.

The claimant argued that if the defendant wanted to challenge causation of a component of the injury, then they were obliged to drop the claim out of the OIC Portal to do so. DJ Hennessy rejected this, concluding that the rules which required claims to drop out of the OIC Portal process were limited to cases where causation of any and all injury was being disputed – the so-called ‘low velocity impact’ (LVI) claims.

Importantly, DJ Hennessy concluded that not only can defendants raise non-LVI causation arguments without the need to drop the matter out of the OIC Portal, but they could do so at a final hearing even if they had not raised such arguments expressly at the pre-litigation stage. DJ Hennessy concluded: “The reality in a case such as this is that “an” injury is accepted albeit the extent of it is for the claimant to prove. The fact that the defendant argues, at the hearing, the claimant has not done so is entirely permissible, with or without notice in my view. The claimant must be taken to know, at the outset, he or she must prepare their case, in so far as is possible, to meet the evidential burden upon them”.

DJ Hennessy continued that in Gray, the lack of explanation in the medical report as to the cause of the alleged non-tariff injury meant the claimant had not met the evidential burden she faced to prove that her thigh and leg symptoms were caused by a non-tariff injury. As such, the claimant only recovered the agreed tariff award for general damages.

Additional successes

Gray also presented two additional successes for the defendant:

1. When dealing with the award for physiotherapy, DJ Hennessy did not allow the claimant to recover the cost of triage and discharge reports as it was not clear that these had added anything to the “clinical picture” and therefore could not be proven as reasonable. This endorses similar findings in other non-reported judgments that these costs are rarely reasonably incurred.

2. The claimant had incorrectly named Somerset Bridge as the defendant in spite of clear correspondence to the contrary. DAC Beachcroft applied to strike out the claim, and ultimately compromised that application on agreement that the claimant pay the defendant £875.00 in wasted costs – more than the damages the claimant ultimately recovered. This demonstrates the importance of ensuring that a claim is pursued against the correct entity.

Gray is of significant importance in understanding how the new OIC Portal rules are to be interpreted and applied in the low value claims arena. It redresses the balance between claimant and defendant in proving causation, emphasising the onus on claimants to provide adequate and sufficient proof of their claims, and safeguarding the defendant’s right to challenge the adequacy of evidence in the OIC Portal regime.

For more information or advice, please contact one of our experts in our Motor Injury Team.