MULTIPLE INJURIES AND TARIFF CASES: ASSESSING DAMAGES – A PRIMER

Following the judgment on Friday in Hassam & Anor v Rabot & Anor [2023] EWCA Civ 19 there is now a clear cut approach to assessing damages where a claimant’s injuries include damages for matters not within the whiplash tariff.   Here we look at the approach the courts should take when faced with a “mixed” claim.

The assessment of damages in a “mixed” injury case involves four steps:

1. Assessing the tariff.

2. Assessing the award for nor tariff injuries.

3. “Stepping back” to reflect the “Sadler” approach, but recognising that the tariff award is lower than common law damages.

4. Ensuring that the final award is not lower than the overall award is not lower than if the only non-tariff injuries had been the only injuries suffered by the claimant.

A BOOK CHAPTER

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).

A REMINDER OF THE SCOPE OF THE TARIFF SCHEME

The Civil Liability Act 2018 introduced the tariff scheme for “whiplash” injuries.

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)).

THE NORMAL APPROACH WHEN THERE ARE MULTIPLE INJURIES

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?”

In the Hassam case Lady Justice Nicola Davies referred to the case of Sadler -v- Filipiak 

1. 1. Where a number of injuries are sustained there will frequently be an overlap in the various symptoms such that a simple aggregation of the individual injuries would represent overcompensation. The approach in such circumstances was identified by Pitchford LJ in Sadler v Filipiak [2011] EWCA Civ 1728 at [34] as follows:

“It is in my judgment always necessary to stand back from the compilation of individual figures, whether assistance has been derived from comparable cases or from the JSB guideline advice, to consider whether the award for pain, suffering and loss of amenity 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 or, on the contrary, should be smaller than the sum of the parts in order to remove an element of double counting. In some cases, no doubt a minority, no adjustment will be necessary because the total will properly reflect the overall pain, suffering and loss of amenity endured. In others, and probably the majority, an adjustment and occasionally a significant adjustment may be necessary.”

1. In Sadler the court was required to “stand back“. In Dureau v Evans (unreported 13 October 1995), Kennedy LJ observed that the court is required to take “an overall view so as to ensure that the principle of full compensation is achieved”.

TAKING THE OVERVIEW IN THE CASE WHERE A TARIFF INJURY IS INVOLVED

The assessment of damages in a “mixed” injury case involves four steps:

1. Assessing the tariff.
2. Assessing the award for nor tariff injuries.
3. “Stepping back” to reflect the “Sadler” approach, but recognising that the tariff award is lower than common law damages.
4. Ensuring that the final award is not lower than the overall award is not lower than if the only non-tariff injuries had been the only injuries suffered by the claimant.

THE JUDGMENT IN THE COURT OF APPEAL

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 TARIFFS

These are set out in the Act.

“2.— Damages for whiplash injuries

“(1)  Subject to regulation 3—

(a)  the total amount of damages for pain, suffering and loss of amenity payable in relation to one or more whiplash injuries, taken together (“the tariff amount” for the purposes of section 5(7)(a) of the Act), is the figure specified in the second column of the following table; and

(b)  the total amount of damages for pain, suffering and loss of amenity payable in relation to both one or more whiplash injuries and one or more minor psychological injuries suffered on the same occasion as the whiplash injury or injuries, taken together (“the tariff amount” for the purposes of section 5(7)(b) of the Act), is the figure specified in the third column of the following table—

THE AWARDS CONSIDERED IN THE COURT OF APPEAL

It is interesting to look at the two decisions considered in the Court of Appeal. The original award in Briggs was lower than the common law damage for one injury alone and the Court of Appeal allowed the cross-appeal against that award and increased £2,800 to £3,500.

The facts of Rabot and Briggs

1. 1. In Rabot the claimant suffered whiplash injuries, soft tissue injuries to the cervical spine and lumbo-sacral area (tariff injuries) together with soft tissue injuries to both knees (non-tariff injuries). On 22 July 2021 a claim was commenced by means of a small claims notification form (“SCNF”) on the Official Injury Claim portal (“OIC”) which enables represented and unrepresented claimants to process and settle RTA related personal injury claims valued at no more than £5,000. Where the parties in such claims have been unable to achieve resolution, CPR PD 27B sets out the procedure to be followed. The relevant evidence will be contained in a Court Pack. In respect of a quantum only case with no uplift requested, PD 27B 3.7(3) states that: “The purpose of the Court Pack is to provide in one set of documents all the facts and evidence on which both parties intend to rely….”.

1. 1. A medical report prepared on behalf of the claimant was included in the Court Pack. It identified the nature and duration of the injuries as being: injury to the cervical spine, resolution 8 to 10 months; injuries to the lumbo-sacral area, resolution 8 to 10 months; injuries to both knees, resolution 4 to 5 months; travel anxiety, resolution within 3 months. The claimant also experienced difficulty in a number of activities.

1. 1. At the quantum only hearing before District Judge Hennessy (“the Judge”) the tariff award was assessed to be £1,390 and the non-tariff award to be £2,500, an overall figure of £3,890. Following the guidance of Pitchford LJ in Sadler, the Judge added the two figures and then “stepped back” in order to reach a final figure by making an appropriate deduction. The Judge identified the clear overlap between the injuries based upon the medical evidence and noted that in terms of loss of amenity there was nothing that could be attributed to the knee injuries alone. The ‘overall award’ was assessed to be £3,100.

Briggs

1. 1. The claimant suffered soft tissue injuries to the neck, upper and lower back (tariff injuries) and to the left elbow, knee and the hips (non-tariff injuries). His claim proceeded through the OIC. The injuries to the hips, chest and elbow resolved respectively within 1, 2 and 3 months. Resolution of further injuries was: the neck, 9 months; the knee, 6 months; the upper and lower back, 9 months. The claimant, a taxi driver, lost 4 days work.

1. 1. At the quantum only hearing before the same judge the Court Pack included the court valuation form, the claimant’s list of losses, evidence to support the claim, a medical report and other documents. The Judge identified her approach as being that applied in Rabot namely:

(a) determine what each injury is;

(b) value each injury in accordance with whatever scheme/regime is appropriate;

(c) add them and then step back exercising the type of judicial discretion that judges have been doing over many years;

(d) reach a final figure by making an appropriate deduction (if any).

1. 1. The Judge stated that the reduction has to be from the non-tariff amount given that the tariff valuation is fixed. She accepted that the overlap represented an overlap in PSLA recognised within each award. The judge noted that the majority of the pain, suffering and limited loss of amenity appeared to flow from the whiplash injury.

1. The Judge assessed the tariff award to be £840, the non-tariff award to be £3,000 and reduced the latter figure by £1,040 to recognise the “clear overlap on the basis of the medical evidence”. She made a total award of £2,800.

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.