The Court of Appeal’s decision on ‘mixed injuries’ cases

Rabot v Hassam and Briggs v Laditan [20.01.23]

The recent decision by the Court of Appeal in Rabot v Hassam and Briggs v Laditan [20.01.23], has provided some certainty on how to approach the valuation of low value motor claims involving whiplash and non-whiplash injuries.

The Court of Appeal, by virtue of a 2-1 majority decision, has now clarified that the correct approach is for both the whiplash and non-whiplash injury to be quantified separately, added together and then a deduction applied for overlap of pain suffering and loss of amenity in the usual way. However, the leading judgment provided by Nicola Davies LJ held one significant caveat:

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.

It is the final point that has created the most positive response from the claimant market and the greatest concern from the compensator side.

The compensator has petitioned to the Supreme Court.

Recap of the Whiplash Reforms

The Whiplash Reforms were implemented on 31 May 2021 to “reduce insurance costs of ordinary motorists by tackling the continuing high number and cost of whiplash claims”.

Compensation tariffs were introduced for whiplash injuries (regulation 2(1)(a)) and whiplash injuries with psychological injuries (regulation 2(1)(b)) as follows:

Duration of injury
Amount – Regulation 2(1)(a)
Amount – Regulation 2(1)(b)

 

Not more than 3 months

 

£240

 

£260

More than 3 months, but not more than 6 months

 

£495

 

£520

More than 6 months, but not more than 9 months

 

£840

 

£895

More than 9 months, but not more than 12 months

 

£1,320

 

£1,390

More  than  12  months,  but not more than 15 months

 

£2,040

 

£2,125

More  than  15  months,  but not more than 18 months

 

£3,005

 

£3,100

More  than  18  months,  but not more than 24 months

 

£4,215

 

£4,345

The appeals

The appeals related to the valuation of damages for two claimants who had suffered whiplash injuries as well as ‘other injuries’. In assessing a total sum for damages, the District Judge took the following approach:

  • Determine what each injury is.
  • Value each injury in accordance the appropriate scheme/regime.
  •  Add the sums together and then “step back” and exercise judicial discretion in the way that judges have been doing for many years.
  • Reach a final figure by making an appropriate deduction.

For the first claimant, the tariff award was assessed to be £1,390 and the non-tariff award was assessed at £2,500. The total of £3,890 was reduced to £3,100.

In the case of the second claimant, the tariff award was assessed to be £840 and the non-tariff award was assessed at £3,000. The total of £3,840 was reduced to £2,800.

The Court of Appeal agreed with the approach taken and the judgment clarifies that where a tariff and non-tariff award are to be assessed the court should:

  • Assess the tariff award by reference to the Regulations.
  • Assess the award for non-tariff injuries on common law principles.
  • “Step back” in order to carry out an adjustment, recognising that the tariff award for the whiplash component was less than it would be if it had been assessed applying common law principles.

As set out above, one significant caveat was provided, which was “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 caveat meant that the award for the second claimant should be increased.

Comment

Whilst the guidance from the Court of Appeal may assist defendants to reach settlement in mixed injury cases which have been ‘on hold’ it is inevitable that the overall award will be higher. Furthermore, it is likely that defendants will face an increase in claims where ‘other’ injuries are alleged boosting the overall value of the claim and potentially bringing the total value of the claim close to the upper limit of the OIC portal of £5,000 for injury.

The caveat that the final award cannot be less than would be awarded for the non-tariff injuries will mean that damages will increase.

There has been a noticeable increase in claims presenting headaches, chest injuries and wrist injuries when OIC cases are compared with similar cases presented in the MoJ process.

Shortly after the judgment was handed down the Justice Committee launched an inquiry considering the effect of the whiplash reforms. There is a distinct possibility that appeal to the Supreme Court may well be overtaken by the inquiry and subsequent report.

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