The Court of Appeal on Friday (20 January 2023) handed down judgment in an important case involving the assessment of damages for injuries sustained in road traffic accidents and collisions. There was massive uncertainty about how this was to be done following the Civil Liability Act 2018, which actually came into effect on 31 May 2021.
The case is Hassam & Anor v Rabot & Anor [2023] EWCA Civ 19. This is barrister Gordon Exall’s comment on it: https://www.civillitigationbrief.com/2023/01/20/court-of-appeal-judgment-today-whiplash-tariff-injuries-and-common-law-damages-how-should-the-court-deal-with-mixed-claims/
As a result of this uncertainty, there are thousands of cases “waiting in the wings” to be assessed for the amount of damages that can be awarded. The uncertainty arises because the Civil Liability Act was brought in to reform the way so-called “whiplash” injuries which are often painful but nevertheless low value in terms of compensation were managed and dealt with. The new scheme applied to claims “worth” under £5000.00, which meant it would apply to a very large proportion of such claims.
The Association of British Insurers said at the time that “more than 1500 such claims were made every day…85% of all claims…and costing insurers more than £2 billion per year”. Insurers tried to justify the restrictions on making such claims and the reduction in damages payable as being necessary to save having to increase premiums to customers and said that they would instead be able to pass on the savings, which would amount to approximately £35 per year.
If you are one of the lucky ones who has explicitly had their car insurance premium reduced by £35 due to this-congratulations!
A new on-line “portal” was introduced, the Official Injury Claim (“OIC”) https://www.officialinjuryclaim.org.uk/ through which members of the public could make a claim themselves for such injuries without using solicitors. In fact, they were unlikely to be able to access formal legal assistance anyway with such “whiplash” claims, because one of the reforms was that legal representatives would not be able to claim any legal costs from the at-fault party for the work they did. Therefore, most solicitors gave up doing such work.
The other major reform was that the amount of compensation that could be awarded was fixed by law depending on the duration of the “whiplash” injury. There was also a fixed sum for any minor psychological injury element. Both these awards would be a lot lower than awards made in the traditional way, that is, by a judge or by negotiation if the matter settled before a trial.
It is no secret why the reforms were brought in as the Ministry of Justice itself said:
“The reforms will “reduce insurance costs for ordinary motorists by tackling the continuing high number and cost of whiplash claims.”
HOWEVER-what the reforms failed to do was make provision for claims that came to be termed “hybrid” or “mixed” claims. These are claims that had a whiplash element and possibly a psychological element and so would fall under the OIC, but also had other injuries that would fall outside the OIC, such as say, a fractures or breaks. They could account for about two-thirds of all such claims.
It has therefore been necessary to wait for the Court of Appeal to give a ruling on how the amount of compensation should be assessed in hybrid claims. Hence the queue of claims waiting to be assessed and finalised.
The Court of Appeal handed down their judgment today.
At it’s most basic -and with law, the devil is always in the detail-the Court decided that Claimants with hybrid cases can recover compensation for both OIC whiplash claims and for non-OIC claims without one cancelling out the other.
Damages for both types of injury can be assessed within the same claim separately, using different processes, OIC tariff figures and the more traditional non fixed amounts based on the individual injuries and which are assessed by judges at Court.
The final award for hybrid/mixed claims will then be reviewed to see if there is any overlap between the different types of injury to ensure there is no “double recovery”-compensation being given for the same injury twice. This could result in a slight overall lowering of the final total amount of compensation, but the overall award should be “fair”.
The appropriate approach of the courts therefore 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.
The decision by the Court was not however unanimous and the Master of the Rolls, Sir Geoffrey Vos, disagreed with the other judges who heard the test cases and gave judgment.
Without going into too much detail, the appeal hinged on whether the Defendants arguments in the initial cases were correct as to the way compensation should be calculated. They argued for aggregating the injury compensation.
At the appeal hearing, both the claimant solicitors and intervenors from the Association of Personal Injury Lawyers and Motor Accident Solicitors argued that this would have the unintended consequence of depriving victims of full compensation for their other injuries. The further submitted that the principle of full compensation was applicable to damages for loss of amenity (the loss of the ability to do something due to injury).
Lady Justice Nicola Davies, who gave the lead ruling in the appeal judgment, said that by calculating compensation in this way, defendants were effectively asking for the claimant’s right to common law compensation for PSLA to be ‘extinguished’. It would, in her view,
“……. 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.’
She commented that if the defendants argument was agreed to be the correct one, then this :
“……..could lead to claimants not pursuing a claim for whiplash as it would reduce any award for compensation for the non-tariff injury” which would be “‘untenable”.
Lord Justice Stuart-Smith agreed, noting there was nothing in the legislation which removed the right to a common law assessment of other injuries. Parliament could have made this clear if that was the intention.
The majority view was that the new Regulations could not be taken to reduce “common law” or “traditional” damages.
It is possible that an appeal will still be made to the Supreme Court, though the Court of Appeal themselves refused leave to appeal. An application for a further hearing would therefore have to be made to the Supreme Court directly.
The message is however, that if you are involved in a road accident which was not your fault, where you have sustained whiplash injury, but have suffered other injuries as well, contact our personal injury team for advice on how you might stand in making a claim for compensation.
Contact us on 01522 561020 or email