HOW MUCH IS AN ARM AND A NECK? THE ASSESSMENT OF DAMAGES FOR PAIN AND SUFFERING IN MULTIPLE INJURY CASES AFTER THE CIVIL LIABILITY ACT 2018

The “whiplash” element of Civil Liability Act 2018 comes into force on the 31st May 2021. This introduces fixed tariff sums for damages for pain and suffering in certain road traffic claims where there has been a “whiplash” injury. A complexity occurs because the Act also preserves common law damages where a claimant has also suffered injuries that fall outside the tariff scheme.  For the first time ever, therefore, the courts will be assessing multiple injury cases on the basis partly on the basis of a statutory scheme and partly in relation to common law damages.  Parliament has, quite deliberately it seems, given no guidance at all as to how this issue should be approached. It will soon become a very real issue for litigants, lawyers, insurers and judges.

Here I consider some of the possible routes the courts could take when assessing damages in multiple injury cases where some of the injuries fall in and others outside the statutory scheme.  One consequence of  the statute is that lawyers have to have detailed knowledge on how the courts approach awards for pain and suffering in “multiple injury” cases. There is likely to be a great deal of uncertainty until this matter is considered by the higher courts (which may not be for several years – if ever).

 

A BOOK CHAPTER AND A WEBINAR

A quick reminder that the issue of how the courts assess multiple injuries is considered in chapter 3 of Munkman and Exall on Damages for Personal Injuries and Death (14th edition).

I will be looking at this issue in more detail in a webinar on damages for pain and suffering on the 10th June 2021.  Booking details are available here. 

 

THE WIDE DEFINITION OF “WHIPLASH”

The first thing that has to be appreciated is that the phrase “whiplash” is given a wide definition in the Act Whiplash is defined in section 1 of the Act.

 

“Whiplash injury” etc
(1)In this Part “whiplash injury” means an injury of soft tissue in the neck, back or shoulder that is of a description falling within subsection (2), but not including an injury excepted by subsection (3).
 
(2)An injury falls within this subsection if it is—
(a)a sprain, strain, tear, rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder, or
(b)an injury of soft tissue associated with a muscle, tendon or ligament in the neck, back or shoulder.
 
(3)An injury is excepted by this subsection if—
(a)it is an injury of soft tissue which is a part of or connected to another injury, and
(b)the other injury is not an injury of soft tissue in the neck, back or shoulder of a description falling within subsection (2).”

 

MINOR PSYCHOLOGICAL INJURIES ARE INCLUDED IN THE TARIFF

The Act also provides a tariff for those situations where a claimant suffers a “whiplash injury” (as defined) and a minor psychological injury.

(3)If the claimant suffers one or more minor psychological injuries on the same occasion as the whiplash injury or injuries, the amount of damages for pain, suffering and loss of amenity payable in respect of the minor psychological injury or the minor psychological injuries, taken together, is to be an amount specified in regulations made by the Lord Chancellor.
(4)If regulations made by the Lord Chancellor so provide, the amount of damages for pain, suffering and loss of amenity payable in respect of—
(a)the whiplash injury or injuries, and
(b)a minor psychological injury or injuries suffered by the claimant on the same occasion as the whiplash injury or injuries,
taken together, is to be an amount specified in regulations made by the Lord Chancellor (notwithstanding subsections (2) and (3)).

INJURIES THAT FALL OUTSIDE THE TARIFF ARE SUBJECT TO “COMMON LAW” ASSESSMENT BY THE COURT

 

Section 3(8) of the Act makes it clear that if a claimant suffers an injury not covered by “whiplash” or “minor psychological injury”, then common law damages apply. This does not, however, allow the court to award more than the statutory tariff for the “whiplash” element of the injury.

“(8)Nothing in this section prevents a court, in a case where a person suffers an injury or injuries in addition to an injury or injuries to which regulations under this section apply, awarding an amount of damages for pain, suffering and loss of amenity that reflects the combined effect of the person’s injuries (subject to the limits imposed by regulations under this section)”

 

NO GUIDANCE AT ALL IS GIVEN BY COURT AS TO HOW THE COURT SHOULD ASSESS “MULTIPLE INJURIES” WHERE SOME OF THE INJURIES ARE IN THE TARIFF SCHEME AND OTHERS ARE NOT

 

The Act was debated in a Grand Committee debate in the House of Lords on the 26th April 2021. Concern was expressed that additional injuries could be used as a means of displacing the perceived advantages of the tariff approach.  The Minister of State stated that he was confident that “judicial expertise” would deal with the assessment of damages in these cases.

Lord Wolfson of Tredegar (Parliamentary Under-Secretary of State for Justice) stated:-

“My noble friends Lord Hunt of Wirral, Lord Bourne of Aberystwyth and Lord Naseby made the point that there is a risk that the regulations could be subverted by other injuries suddenly becoming the main injury. As the noble and learned Lord, Lord Hope of Craighead, mentioned, Section 3(8) of the Act provides that, where a claimant suffers injuries in addition to a whiplash injury, the court is not prevented from awarding damages that reflect the combined effect of the injuries sustained. The courts will therefore need to determine how mixed injuries are addressed. We are confident that judicial expertise will address these matters on a case-by-case basis, but we will look vigilantly to ensure that the regulations are not undermined, whether by the claims management industry or otherwise, by people reordering their claims so that minor injuries become the main part of their claim.”

HOW THE COURTS TRADITIONALLY APPROACH MULTIPLE INJURY CASES

The courts have never had a “mathematical” approach to general damages in multiple injury cases.  Rather it is a matter of judgment the approach was summarised by the  Court of Appeal in Brown v Woodall [1995] PIQR Q36

“In this type of case, in which there are a number of separate injuries, all adding up to one composite effect upon a plaintiff, it is necessary for a learned judge, no doubt having considered the various injuries and fixed a particular figure as reasonable compensation for each, to stand back and have a look at what should be the aggregate figure and ask if it is reasonable compensation for the totality of the injury to the plaintiff or whether it would in the aggregate be larger than was reasonable?”

THE VARIOUS APPROACHES THE COURTS MAY TAKE

There are a number of options.

 

  1. Ignore the statutory figure altogether and award common law damages for those injuries which fall outside the tariff whilst disregarding the statutory figure

This is a possibility. However it is far from clear that the statute allows this.  The section specifically refers to “awarding an amount of damages for pain, suffering and loss of amenity that reflects the combined effect of the person’s injuries”   Simply ignoring the statutory sum may not be viewed as an assessment of the “combined” amount of the person’s injuries, unless the courts are willing to hold that the statutory sums are so inadequate that they should be disregarded in full.

 

2. Treat a case with statutory damages as being the same as any other multiple injury

Again this is possible, however there is one major problem.   The “traditional” approach to the assessment of general damages in these cases undoubtedly requires the courts to consider all aspects of the awards being made.  However it may well not be open to the court to discount the statutory damages sum. Section 3(2) of the Act:

“The amount of damages for pain, suffering and loss of amenity payable in respect of the whiplash injury or injuries, taken together, is to be an amount specified in regulations made by the Lord Chancellor.”

If the statute states that the award for the whiplash injury “is to be” the specified sum there are doubts as to whether the courts, as a part of the “overview” necessary in assessing multiple injuries have any power to reduce the whiplash element of the sum.

3. Take an “overview” approach but with only the “common law” element of the award being subject to discount for “overview”

This appears to be the most likely approach.  The statutory sum is fixed and cannot be discounted simply because there are multiple injuries some of which fall outside the tariff.  Rather it is only the common law damages where the court may, if appropriate, consider discounting because of the existence of the statutory whiplash award.

4. A more sophisticated “tapered” approach

Remembering how the Court of Appeal surprised us all in Heil -v- Rankin [2001] QB 272 it is not possible to rule out a “tapered” approach – with the statutory sum becoming less and less relevant to the award for the non-tariff element  as the seriousness of the other injuries increases. However, ultimately, this is little different to the traditional “overview” approach – with the caveat that the statutory sum cannot be reduced.