Court Of Appeal Judgement On Mixed Injury Claims

The Court of Appeal has recently handed down its highly anticipated judgment in two road traffic accident cases on mixed injury claims Rabot v Hassam and Briggs v Boluwatife Laditan [2023] EWCA CIV 19. The cases involved claimants who had suffered both whiplash and additional injuries.

Whiplash injuries are now to be dealt with under a fixed tariff scheme established under the Civil Liability Act 2018 and related Regulations. However, there is a lack of guidance in this legislation to inform the approach of the Courts in assessing and valuing awards for damages where a claimant has suffered whiplash injuries in combination with other injuries.

In these cases, the Court of Appeal, therefore, had to consider how to quantify damages for pain, suffering, and loss of amenity where the claimants had suffered both whiplash injuries dealt with under the fixed tariff system, and also suffered further injuries which fall outside the tariff system and are valued by applying common law principles.

The problem the Court of Appeal had to address was:

“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?”

The first instance cases

In Rabot, the claimant suffered the following injuries in a road traffic accident:

  • Whiplash injury lasting eight to ten months (tariff injury);
  • Travel anxiety lasting three months (tariff injury); and
  • Soft tissue injuries to both knees lasting four to five months (non-tariff injury).

At a hearing before District Judge Hennessy in the Birkenhead County Court, the tariff award was assessed at £1,390 and the non-tariff award at £2,500, giving a total of £3,890. The District Judge then reduced this figure to reflect the overlap in damages, to £3,100 (in line with the guidance of Pitchford LJ in Sadler v Filipiak [2011] EWCA Civ 1728).

In Briggs, the Claimant sustained the following tariff injuries:

  • Soft tissue injuries to the neck lasting six months; and
  • Soft tissue injuries to the upper and lower back lasting nine months.

He also suffered the following non-tariff injuries:

  • Knee injury lasting six months;
  • Left elbow injury lasting three months;
  • Chest injury lasting two months; and
  • Hip injuries lasting one month.

District Judge Hennessy assessed the tariff award in this case to be £840 and the non-tariff award to be £3,000. This was reduced by £1,040 to recognise the Sadler adjustment; the “clear overlap on the basis of the medical evidence”. The total awarded was therefore £2,800. The District Judge noted that the majority of the pain, suffering, and loss of amenities appeared to be a result of the whiplash injury.

Court of Appeal judgment

In his majority Judgment (the Master of the Rolls dissented), Davies LJ stated that there was nothing in the 2018 Act that suggested Parliament’s intention to alter the common law process of assessment for, or the value of, non-tariff injuries. He said:

The legislation was directed to and confined exclusively to whiplash injuries.”

The Judge went on to provide guidance for the assessment of damages for pain, suffering, and loss of amenity in mixed injury cases. The Court should:

  • ‘assess the tariff award in accordance with the Regulations;
  • assess the award for non-tariff injuries on common law principles; and
  • “step back” in order to carry out the Sadler adjustment, recognising that the sum included in the tariff for the whiplash component is unknown but is smaller than it would be if damages for the whiplash component had been assessed applying common law principles

There is one caveat, namely that the final award cannot be less than what would be awarded for the non-tariff injuries if they had been the only injuries suffered by the claimant’.

Applying this criteria, the original award of £3,100 in Rabot was upheld. In Briggs, the total award was increased from £2,800 to £3,500.

Comment

This Court of Appeal judgment goes some way to clarify the approach to be taken when assessing and valuing claims involving ‘mixed’ injuries. This can only assist all parties involved in such claims. It also makes it clear that the 2018 Act and Regulations should not be used to make inroads into the right of claimants to have their non-whiplash injuries valued under common law principles – which are inevitably more generous than the tariff scheme.

How can we help?Mixed Injury Claims

Lisa Preece is a Partner in our expert Personal Injury team, which has been ranked in Tier One by the independently researched publication, The Legal 500 and Commended in The Times Best Law Firms 2023.

For more information on road traffic accident claims, please contact Lisa or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online enquiry form.

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