Darryl Allen KC in the Court of Appeal in “mixed injury” test cases – limited guidance from a divided Court of Appeal

The Court of Appeal has today (20 January 2023) handed down its much anticipated judgment in the “mixed injury” test cases Rabot v Hassam and Briggs v Laditan [2023] EWCA Civ 19.  A helpful summary of the decision can be found here.

The question at the heart of the appeal 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?

A divided Court of Appeal, with the Master of the Rolls providing a strong dissenting judgment, has not provided the level of clarity and guidance hoped for.

The Cases

Both test cases started out in Birkenhead and the appeals were against decisions of District Judge Hennessy.  She had provided detailed judgments in which she stated that she should value the non-tariff injury, add it to the tariff award for the whiplash injury, then “step back” and make the relevant deduction to account for any overlap in accordance with the Court of Appeal’s guidance in Sadler v Filipiak EWCA Civ 1728.

The Majority Decision 

Lady Justice Nicola Davies, in a judgment supported by Lord Justice Stuart-Smith, approved the approach that had been taken by the District Judge, with one caveat: the final award [after the Sadler style adjustment, cannot be less than would be awarded for the non-tariff injuries if they had been the only injuries suffered by the claimant.

The awards in the two cases now stand as follows:

	Tariff	Non-tariff	Total	Award	Reduction
Rabot	£1,390	£2,500	£3,890	£3,100	£790 (57% of tariff)
Briggs	£840	£3,000	£3,840	£3,500	£340 (40% of tariff)

The Guidance

The limited guidance from the Court of Appeal effectively endorses the DJ’s approach, stating that when assessing damages in a mixed injury claim you should:

• Assess the tariff award by reference to the Regulations;
• Assess the award for non-tariff injuries on common law principles; and
• “Step back” in order to carry out any necessary adjustment so as to avoid any possible overcompensation (but no adjustment to less that the full non-tariff sum).

The Rationale

In the lead judgment, Nicola Davies LJ held that it must be assumed that Parliament has not strayed further into the common law than necessary to remedy the mischief that was the focus of the 2018 Act i.e. to reduce the damages recoverable for the whiplash injury, but not to alter the common law assessment of non-tariff injuries.  In her view, adopting the approach supported by the Master of the Rolls would be to extend the compass of the statute to common law assessment of the non-tariff injury, contrary to the Act’s stated purpose.

Stuart-Smith LJ supported the judgment of Nicola Davies LJ and set out the basis on which he disagreed with the Master of the Rolls.  He noted that the Master of the Rolls’ acceptance that the 2018 Act “removed certain claimants’ rights to full compensation for whiplash injuries, but not for other kinds of injury” is at odds with the conclusion that “Parliament has legislated for the reduction of general damages for non-tariff personal injuries in cases where whiplash injuries have been sustained, even though the statute does not appear specifically to be directed at non-whiplash cases.”

The issue between the judges came down to the statutory interpretation of sections 3(1) and 3(2).  Stuart-Smith LJ noted as follows:

In the face of wording which is specific in applying only to damages for qualifying whiplash injuries and where all the contextual materials demonstrate that the (political and) legal policy motivating and underpinning the passing of the legislation was confined solely to the perceived mischief of excessive whiplash claims, it is not open to the Courts to extend the effect of the language of the 2018 Act so that, by a sidewind, it removes the right to a common law assessment of other injuries.  If such a step is to be taken, it must be taken by Parliament. 

In a strong dissenting judgment the MR found in favour of the Defendants’ arguments. He concluded that the wording of section 3 of the 2018 Act leads “inexorably” to the conclusion that the statutory award would cover all the loss of amenity caused by the whiplash; therefore, the statute must impact on the common law in cases such as these where the loss of amenity is caused by the whiplash and the mixed injury together.  He referred to the alternative argument as “unprincipled” and held: 

The principled solution is to apply the statute and then work out what consequences of the other injuries are not caused by the whiplash as well, and assess the proper common law compensation for those additional consequences – in these cases the pain and suffering caused by the other injuries. 

This point flows from the DJ’s finding on the facts that there was no loss of amenity that could be said to relate to the additional injuries alone.

Comment

The majority decision stands but does not provide much clarity for parties to understand how to settle these claims.   The approach upheld by the Court is to assess the tariff amount, assess the non-tariff injury separately and without reference to the whiplash injury, then add the sums together but  “step back” to apply an adjustment so as to avoid over-compensation.

Quite what is meant by over-compensation given the reasons stated for the decision remains entirely unclear. There is a hint in the judgment of Nicola Davies LJ that the fact that the tariff was below the level of 100% compensation was a material point in her decision:

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

The Court was asked to provide guidance to medical experts around the need to be clear in their reports as to what is and what is not attributable to the whiplash injury.  No such guidance has been provided.  Whilst the finding that the non-tariff injury must be valued as a stand-alone injury may mean that no such guidance was needed, it is difficult to see how any overlap can be assessed when reports do not distinguish between the effects of each injury.

Outcome

As a result of the majority decision both the appeal and cross appeal in Rabot were dismissed as was the appeal in Briggs, although the cross appeal was allowed to the extent of increasing the award from £2,800 to £3,500.

The hearing of these appeals was expedited, the appeals were initially filed in the County Court in August 2022 and were heard by the Court of Appeal on 30 November 2022 as the Court had stated that it recognised the need for clear and early guidance in order to resolve these claims.

Darryl Allen KC, instructed by Andrew Parker and Joanna Folan of DAC Beachcroft, represented the Defendants and the Association of British Insurers in the Court of Appeal.

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