COURT OF APPEAL JUDGMENT TODAY: WHIPLASH TARIFF INJURIES AND COMMON LAW DAMAGES: HOW SHOULD THE COURT DEAL WITH “MIXED” CLAIMS?

In the judgment today in Hassam & Anor v Rabot & Anor [2023] EWCA Civ 19 the Court of Appeal (by a majority view) decided that the Civil Liability Act 2018 did not impact on the assessment of damages for pain and suffering to be awarded for non-whiplash injuries.   The Master of the Rolls took a different view, however the majority view prevailed.

1. 1. It follows that the approach of the court to an assessment of damages in respect of a tariff and non-tariff award where concurrently caused PSLA is present is that 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 CASE

The Court was considering the issue of “mixed” claims.  “Whiplash” injuries in road traffic cases are now subject to a statutory tariff, which is lower than common law damages for the same injury.  There was considerable debate as to the approach the courts should take when a claimant suffered a “whiplash” injury and an injury that fell outside the scope of the tariff. Two test cases were remitted directly from the county court to the Court of Appeal.

THE JUDGMENT OF THE MAJORITY

The majority view was that the Regulations could not be taken to reduce common law damages.  The appropriate approach of the courts was to (i) assess damages under the tariff; (ii) assess common law damages for the non-whiplash injuries; (iii) take an “overview” as to the award – but taking into account that the tariff award is lower than common law damages would have been.

Lady  Justice Nicola Davies judgment stated:-

1. 1. The 2018 Act and the Regulations represent a statutory incursion into the common law method of assessing damages and a radical departure from the common law approach to such an assessment in that they abandon the “fair and reasonable” approach to the assessment of whiplash injuries and minor psychological injuries in cases falling within the scope of the legislation.

1. 1. The mischief at which the legislation is directed is minor whiplash claims resulting from a motor vehicle accident. There is nothing in the wording of the statute or in the extra Parliamentary material which suggests, let alone demonstrates, an intention to alter the common law process of assessment for, or the value of, non-tariff injuries. The legislation was directed to and confined exclusively to whiplash injuries. There is no mischief which Parliament attempted to remedy in respect of the common law assessment of non-tariff injuries.

1. 1. Parliament has chosen to legislate into the area of the common law of England and Wales but having done so, and in the absence of any clear indication to the contrary, it is presumed not to have altered the common law further than was necessary in order to remedy the mischief which was the focus of the 2018 Act. In Lachaux v Independent Print Ltd [2020] AC 612 at [13] Lord Sumption identified presumptions which apply in such circumstances namely:

(a) Parliament is taken to have known what the law was prior to the enactment, including the principle of full compensation and the Judicial College Guidelines provided as to the quantification of the PSLA at common law;

(b) there is a presumption that a statute (in this case the 2018 Act) does not alter the common law unless it so provides, either expressly or by necessary implication;

(c) there is a presumption that Parliament has not altered the common law further than was necessary.

1. 1. The whiplash reform programme was designed to reduce the amount of damages recoverable for the whiplash injury in order to discourage false or exaggerated whiplash claims. The compromise effected by the legislation derogates from the principle of 100% compensation pursuant to the common law. An award pursuant to the legislation is significantly lower than a common law assessment of damages made pursuant to the Judicial College Guidelines.

1. 1. Concurrent with the objective of reducing damages, the reforms seek to reduce the costs associated with claiming damages for whiplash injuries by introducing a bespoke portal process which is intended to provide a mechanism for the swift and straightforward resolution of claims falling within its scope.

1. 1. At an assessment of damages hearing pursuant to the 2018 Act, the court retains a discretion as to whether to determine the case on the papers or by way of an oral hearing. The time given for such a hearing is limited, taking place as it does during the district judge’s daily list. The time listing for the cases of Briggs and Rabot was 45 minutes each. At the hearing evidence is generally limited to that contained within the Court Pack. In Briggs and Rabot no oral evidence was received by the court.

1. 1. Pursuant to sections 3(2) and 3(3) of the 2018 Act, the amount of damages for PSLA for the whiplash injury or injuries is the amount specified in the Regulations. The court’s role in assessing the appropriate figure for PSLA for a tariff injury is circumscribed by section 3(2) and, where appropriate, section 3(3), and by the Regulations. It is limited to an assessment of the duration of the whiplash injury save where the claimant seeks an uplift under Regulation 3. The award is based upon the duration of the symptoms regardless of the level of pain, suffering and loss of amenity actually suffered by a claimant.

1. 1. Section 3(8) recognises the need for an assessment for an award of damages in respect of injuries additional to those suffered and contained within the section 3(2) or 3(3) injuries.

1. 1. In such a mixed injury case, given the differing bases of the section 3(2), 3(3) (tariff) and s.3(8) (non-tariff) assessments, the court is required to carry out two separate assessments. The issue is how an assessment is to be made for PSLA which is concurrently caused by both the tariff and non-tariff injuries. In my view, the approach of the court begins from the premise that the focus of the 2018 Act and the Regulations is directed to whiplash injuries: they were not intended to and did not alter the common law assessment of non-whiplash injuries. Parliament is taken to have known the principle of full compensation and the quantification of the same at common law.

1. 1. Neither section 3(8), nor any other provision of the 2018 Act, either expressly or by necessary implication provides that non-tariff injuries should be assessed by reference to anything other than common law principles. The words in section 3(8) that “Nothing in this section prevents….” indicate that it is open to the court, in a case where the claimant suffers injuries additional to those assessed pursuant to section 3 of the 2018 Act, to make an award that “reflects the combined effect of the person’s injuries”. I regard these latter words as critical to the court’s assessment upon common law principles in respect of any award pursuant to section 3(8). This is particularly so when the tariff award cannot be said to reflect full compensation for the person’s injuries assessed on common law principles.

1. 1. An intrinsic part of a common law assessment in which more than one injury is sustained is, following Sadler, to step back and to assess whether the total award represents double counting or overcompensation. Such an approach is appropriate where both injuries are assessed pursuant to common law principles. In a case where one award is in respect of a tariff injury which has not been assessed pursuant to common law principles and thus represents a lower figure than would have been awarded had such an assessment been made, the court is faced with the difficulty of not knowing what, if any, allowance has been made in the tariff award for PSLA arising from a concurrent cause.

1. 1. It is of note that the words in section 3(8) replicate the expression used by Pitchford LJ in Sadler when he stated that it is necessary to stand back from the compilation of the individual figures in considering whether the award for PSLA should be greater than the sum of the parts “in order properly to reflect the combined effect of all the injuries upon the injured person’s recovering quality of life…”. That Parliament has used the same expression, in my view, adds weight to the contention that the approach to be taken pursuant to section 3(8) is that the award must reflect a common law assessment of the combined effect of all the PSLA which is the result of concurrently caused injuries in both the tariff and non-tariff awards subject only to the limits imposed by the section on the amount recoverable for the tariff injury. A factor in support of this approach is that in standing back, a court will be aware that it is only the non-tariff award which can be reduced.

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

1. 1. It follows that the approach of the court to an assessment of damages in respect of a tariff and non-tariff award where concurrently caused PSLA is present is that 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.

1. 1. The defendant’s approach would result in the claimant’s right to common law compensation for PSLA caused by the non-tariff injury where the whiplash injury is a concurrent cause being effectively extinguished. It would serve to extend the compass of the 2018 Act to the non-whiplash injury which is contrary to the stated purpose of the statute and not required by necessary implication. It would also have the effect of claimants being compensated in radically different amounts for their non-whiplash injuries depending upon whether a qualifying whiplash injury has been sustained. It could lead to a position where a claimant would not pursue a claim for whiplash injury as it would have the effect of reducing any award for compensation for the non-tariff injury. I regard such an approach as untenable. Accordingly, and for the reasons given and subject to the views of the Master of the Rolls and Stuart Smith LJ, I would dismiss the appeals in Rabot and Briggs.

1. 1. As to the cross appeals: I am unable to find that the deduction made by the judge in Rabot was wrong in principle or unreasonable. Accordingly, and subject to the views of the Master of the Rolls and Stuart-Smith LJ, I would dismiss the cross appeal in Rabot.

1. In Briggs the judge’s adjustment resulted in a total figure which was lower than the assessment for the non-tariff injury. Given the fact that the tariff award was lower than an award assessed pursuant to common law principles, I regard the adjustment as too great. In my view a reduction of £340 to the non-tariff award, giving a total award of £3,500 would represent appropriate compensation for the injuries sustained. To this extent, and subject to the views of the Master of the Rolls and Stuart-Smith LJ, I would allow the cross appeal in Briggs.