Mixed Injuries – Limited Guidance From A Divided Court Of Appeal

The Court of Appeal has today (20 January 2023) handed down its much anticipated judgment in the mixed injury test cases: Rabot v Hassam and Briggs v Laditan [2023] EWCA Civ 19. This has been a key issue in the implementation of the package of whiplash reforms introduced by the Civil Liability Act 2018 (the 2018 Act). 

The court set out the question to be addressed as follows:

“how is the court to assess damages for pain, suffering and loss of amenity (“PSLA”) where the claimant suffers a whiplash injury which comes within the scope of the 2018 Act and attracts a tariff award stipulated by the Whiplash Injury Regulations 2021… but also suffers additional injury which falls outside the scope of the 2018 Act and does not attract a tariff award?”

A divided Court of Appeal, with the Master of the Rolls providing a strong dissenting judgment, has not provided the level of clarity and guidance hoped for.

The Cases

Both test cases were started in the Official Injury Claim portal, then heard in Birkenhead County Court and the appeals were against decisions of District Judge Hennessy. She had provided detailed judgments in which she stated that she should value the non-tariff injury, add it to the tariff award for the whiplash injury, then “step back” and make the relevant deduction to account for any overlap in accordance with the Court of Appeal’s guidance in Sadler v Filipiak [2011] EWCA Civ 1728.

Click here for a brief detail of the underlying test cases.
Click here for a summary of the arguments before the Court of Appeal.

The Majority Decision

Lady Justice Nicola Davies, in a judgment supported by Lord Justice Stuart-Smith, approved the approach that had been taken by the lower court. A caveat was added in that the final award cannot be less than would be awarded for the non-tariff injuries if they had been the only injuries suffered by the claimant.

The awards in the two cases now stand as follows:

The Guidance

The limited guidance from the Court of Appeal effectively endorses the DJ’s approach, stating that when assessing damages in a mixed injury claim you should:

• Assess the tariff award by reference to the Regulations;
• Assess the award for non-tariff injuries on common law principles; and
• “Step back” in order to carry out any necessary adjustment so as to avoid any possible over-compensation (but no adjustment to less that the full non-tariff sum).

The majority rationale

Nicola Davies LJ in the lead judgment held that it must be assumed that Parliament has not strayed further into the common law than necessary to remedy the mischief at which the 2018 Act was directed. She determined that this purpose was to reduce the damages recoverable for the whiplash injury, but not to alter the common law assessment of non-tariff injuries. In her view adopting the approach supported by the Master of the Rolls (see below) would be to extend the compass of the statute to common law assessment of the non-tariff injury, contrary to the Act’s stated purpose.

Stuart-Smith LJ supported the judgment of Nicola Davies LJ and set out the basis on which he disagreed with the Master of the Rolls. Quoting the Master of the Rolls’ acceptance that the 2018 Act-

“removed certain claimants’ rights to full compensation for whiplash injuries, but not for other kinds of injury” (Stuart-Smith LJ’s emphasis),

he found this to be at odds with the MRs conclusion that-

“Parliament has legislated for the reduction of general damages for non-tariff personal injuries in cases where whiplash injuries have been sustained, even though the statute does not appear specifically to be directed at non-whiplash cases.” 

The issue between the judges came down to the statutory interpretation of sections 3(1) and 3(2). Stuart-Smith LJ noted as follows:

In the face of wording which is specific in applying only to damages for qualifying whiplash injuries and where all the contextual materials demonstrate that the (political and) legal policy motivating and underpinning the passing of the legislation was confined solely to the perceived mischief of excessive whiplash claims, it is not open to the Courts to extend the effect of the language of the 2018 Act so that, by a sidewind, it removes the right to a common law assessment of other injuries. If such a step is to be taken, it must be taken by Parliament.

The Master of the Rolls’ approach

In his dissenting judgment the MR found in favour of insurers’ arguments. He concluded that the wording of section 3 of the 2018 Act leads “inexorably” to the conclusion that the statutory award would cover all the loss of amenity caused by the whiplash; therefore, the statute must impact on the common law in cases such as these where the loss of amenity is caused by the whiplash and the mixed injury together. He referred to the alternative argument as “unprincipled” and held that:

The principled solution is to apply the statute and then work out what consequences of the other injuries are not caused by the whiplash as well, and assess the proper common law compensation for those additional consequences – in these cases the pain and suffering caused by the other injuries.

This point flows from the DJ’s finding that there was no loss of amenity that could be said to relate to the additional injuries alone.

Comment

The majority decision stands but does not provide much clarity for parties to understand how to settle these claims. The approach upheld by the Court is to assess the tariff amount, assess the non-tariff injury separately and without reference to the whiplash injury, then add the sums together but “step back” to apply an adjustment so as to avoid over-compensation. 

Quite what is meant by over-compensation given the reasons stated for the decision remains entirely unclear. There is a hint in the judgment of Nicola Davies LJ that the fact that the tariff was below the level of 100% compensation was a material point in her decision:

Further, any fear of windfall damages is negated by the fact that Parliament has significantly depressed the value of PSLA for the tariff injury. 

The Court of Appeal had also been asked to provide guidance to medical experts around the need to be clear in their reports as to what is and what is not a whiplash injury. No such guidance has been provided. Whilst the finding that the non-tariff injury must be valued as a stand-alone injury may mean that no such guidance was needed, it is difficult to see how any overlap can be assessed when reports do not distinguish between the effects of each injury.

Outcome

As a result of the majority decision both the appeal and cross appeal in Rabot were dismissed as was the appeal in Briggs, although the cross appeal was allowed in part. There was no order as to costs (these were small claims appeals) save that the claimant in Briggs was awarded their court fees of £1,804.

DAC Beachcroft represented the defendants in both appeals, instructed by the ABI and the defendants’ insurers. The hearing of these appeals was expedited, the appeals were initially filed in the County Court in August 2022 and were then “leapfrogged” and heard by the Court of Appeal on 30 November 2022, as the courts recognised the need for clear and early guidance in order to resolve these claims. APIL and MASS intervened with the permission of the Court of Appeal.

For more information or advice, please contact one of our experts in our Strategic Advisory Team.