Mixed Injury Claims - Court of Appeal offers (limited) guidance

Siobhan Hardy
Siobhan Hardy

Published: January 30th, 2023

7 min read

The motor claims handling world was waiting anxiously for the decision in Rabot v Hassam: Briggs v Laditan and APIL and MASS (Interveners)(2023) EWCA Civ 19 which was handed down this week. But it has not provided the clear guidance that the motor claims world wanted.

The basic principle in assessing general damages for pain and suffering and loss of amenity (PSLA) in personal injury claims is to return the claimant to the position they would have been in had they not been injured. There is often an overlap in symptoms when multiple injuries are sustained, such that a simple valuation of each injury, followed by then aggregating them might not result in the correct level of compensation. As such it was established in the case of Sadler v Filipiak in 2011 that the court should stand back once injuries have been valued and check the overall total sum and assess if it should be adjusted up or down.

The Civil Liability Act 2018 (the 2018 Act) introduced a tariff for general damages for PSLA for whiplash injuries, but the problem the Court of Appeal was addressing was how to deal with calculating overall damages for PSLA in a claim where there are both fixed tariff injuries as well as other non-tariff injuries sustained by a claimant in a motor accident, and an overlap of symptoms concurrently caused by both the tariff and non-tariff injuries.

The claimant representatives argued that victims of motor accidents are already subject to reduced compensation due to the introduction of the whiplash tariff, so there was no need to "step back". They argued that an award should be made for the tariff injuries and a conventional common law assessment should be made for other injuries and they should then be added together with no reduction. Alternatively, if a reduction was to be considered it should only be carried out after separately assessing and then amalgamating both awards and should not result in an award of less than the non-tariff injuries figure arrived at.

The Defendant's position was that all possible common symptoms were intended to be covered by the tariff award, so only compensation for additional suffering over and above that suffered by the whiplash injuries, if any, should be assessed on a conventional basis.

The intervenors, MASS and APIL, had a third approach. They suggested that the non-tariff injuries should be considered with the totality of any overlapping injuries and an award made for the full affect, in addition to the tariff award.

In a majority decision the court of appeal decided that where there is concurrent PSLA which would attract a tariff and non-tariff award the court should:

(i) assess the tariff award by reference to the Regulations;

(ii) assess the award for non-tariff injuries on common law principles; and

(iii) "step back" in order to carry out the Sadler adjustment, recognising that the sum included in the tariff award 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 would be awarded for the non-tariff injuries if they had been the only injuries suffered by the claimant.

The Court of Appeal were concerned that the defendant's approach would result in the claimant's right to common law compensation for non- tariff injuries being effectivity extinguished, and that parliament had clearly not intended that to be the case. The 2018 Act had expressly recognised the need for an assessment for additional injuries outside the tariff, and said that meant that 2 separate assessments needed to be made. They were clear that the focus of the 2018 Act was to reduce the concerns about fraudulent claims arising from whiplash and to make them less attractive claims for fraudsters. It was not intended to alter the common law for assessment of PSLA for non-whiplash injuries.

That much is now clear. However this was an opportunity for the Court of Appeal to give guidance on how the "step back" assessment should be carried out, and they failed to do that. So, there will remain significant areas for dispute between parties as to what adjustment should be made to overall settlement offers in such mixed claims.

Defendants have been concerned about double compensation for claimants and indeed the dissenting judgment of the Master of the Rolls gives defendants some hope that such arguments could still be raised in future. He pointed out that in both of the cases before them, the whiplash injuries had lasted longer than the non-tariff injures and that there was no loss of amenity caused by the additional injures that was not also caused by the whiplash. And his view was that parliament had legislated for the only award that should be made for all of the PSLA caused by whiplash, even if concurrent with other injuries, was to be the tariff award. Only if the non-tariff injuries lasted longer than the effects of the whiplash, should increased compensation be awarded for that aspect of the PSLA. We will have to wait and see if this case, or another appeal perhaps goes to the Supreme Court for further consideration of this issue.

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