Court of Appeal judgement provides some clarity on mixed-injury whiplash claims
The Court of Appeal handed down its judgement in two mixed-injury cases on Friday 20th January 2023, providing some certainty on the many mixed tariff and no tariff cases which are currently outstanding, following the implementation of whiplash reforms introduced by the Civil Liability Act 2018 “the act”.
Both Claimants Rabot and Briggs (Rabot v Hassam and Briggs v Laditan [2023] EWCA Civ 19) probably never thought the minor injuries that they sustained in two independent road traffic accidents would ever end up in the Court of Appeal, however, because they had sustained what the law defines as tariff whiplash injuries, mixed with other non-tariff injuries alongside the whiplash, their cases have provided important guidance on the assessment of damages in mixed injury cases.
Since 31st May 2021, whiplash injuries sustained in road traffic accidents in most circumstances are compensated based on a tariff which is brought in force through the Civil Liability Act 2018. This tariff provides for significantly lower damages than if the injuries were assessed before the tariff was given legal force. This tariff system has caused Personal Injury practitioners little issues when assessing damages, if the only injury sustained by the claimant is a whiplash injury as defined by the act. In these circumstances medical evidence is obtained, the injury is compared to the tariff and usually an award will be agreed based upon the facts of the injury, the duration of suffering and the description with the tariff.
However, what if the claimant sustained a whiplash-tariff injury and a non-tariff injury in the same accident, how are damages assessed? The answer is found in these cases. The Court of Appeal handed down its judgement, and having heard the submission from the claimants, the insurers, the Association of Personal Injury Lawyers (APIL) and the Motor Accident Solicitors Society (MASS), the Court has effectively concluded a three-stage process to assess damages:
- Assess the tariff award for the whiplash injury by reference to the Regulations in place under the act;
- Assess the award for non-tariff injuries on common law principles which all personal injury practitioners are experienced in; and
- Carry out an overall assessment of the value of the injuries, if necessary reducing the overall value to reflect the combined nature of the pain and suffering from all injuries. This is in accordance with the principles of Sadler v Filipiak [2011] EWCA Civ 1728.
The court then placed one further safety net, which is a requirement that the overall award cannot be lower than the amount that would be awarded for the non-tariff injuries alone. This was an issue which gave rise to the court adjusting upwards the award in Briggs.
Although this was a majority decision by the Court of Appeal and the Master of the Rolls provided a dissenting judgement, the judgement does still provide helpful guidance on assessing damages in these cases and although it may not have answered all of the questions, it does provide sufficient clarity to enable clients to be advised as to the likely award where a whiplash tariff and a non-tariff injury have been sustained. Hopefully many of the cases which have been commenced under the Official Injury Claim Portal and which have not progressed for many months whilst this judgement was awaited are now likely to move forward with the guidance provided by the Court of Appeal.
At Rogers & Norton, our specialist Personal Injury Teams advise Claimants and self-insured Defendants, who will all benefit from our analysis and advice on the judgement and the tactical approach to take in the light of the appeal court findings.
From straightforward collisions to severe accidents resulting in injury and rehabilitation, we are able to help with a wide range of road traffic accident claims and have specialist experts able to advise both those pursuing and defending claims. For more information, visit our Personal Injury service pages or to arrange an appointment please contact us on 01603 666001 or by emailing mark.hambling@rogers-norton.co.uk