Personal injury: Majority decision
The Court of Appeal’s ruling today on how to value mixed personal injury claims in the Official Injury Claim portal has not provided sufficient clarity, some lawyers have warned.
The court ruled by majority – with Lady Justice Nicola Davies and Lord Justice Stuart-Smith agreeing and the Master of the Rolls Sir Geoffrey Vos dissenting – meaning that an appeal to the Supreme Court is possible, although the court refused the parties permission.
It essentially upheld the approach of District Judge Hennessy in Birkenhead, two of whose decisions were leapfrogged to the appeal court.
She held that the proper approach was to value both injuries separately in accordance with whatever scheme or tariff applied, and then reduce the total for any element of overlap of the non-tariff element with that already compensated for within the tariff for pain, suffering and loss of amenity (PSLA).
In Rabot, the tariff award was £1,390 and the judge awarded £2,500 for the non-tariff injuries. She then reduced the total of £3,890 to £3,100 “to recognise the clear overlap on the basis of the medical evidence”.
In Briggs, the tariff award was £840 and non-tariff award £3,000, but the judge reduced the total from £3,840 to £2,800.
Giving the main ruling, Davies LJ agreed with the approach. She said the court should assess the tariff award by reference to the 2021 Whiplash Injury Regulations, assess the award for non-tariff injuries on common law principles, and then “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 was one caveat, she added, “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”.
Sadler was the 2011 Court of Appeal ruling in Sadler v Filipiak, a case involving multiple injuries. In that, Lord Justice Pitchford said it was 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”.
Davies LJ said the fact that Parliament used the same expression in the Civil Liability Act “added weight” to her conclusion.
“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. 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 defendants argued that all PSLA common to (i.e. concurrently caused by) both the tariff and non-tariff injuries should be treated as fully compensated for by the tariff award.
This meant only a further small amount would be appropriate for any additional PSLA, if any could be exclusively attributed to the other injuries as being solely caused by them.
Davies LJ said this would result in the claimant’s right to common law compensation for PSLA caused by the non-tariff injury, where the whiplash injury was a concurrent cause, “being effectively extinguished”.
She went on: “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.”
She upheld the claimant’s cross-appeal in Briggs that her 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.”
Vos MR said the wording of section 3 of the 2018 Act “leads inexorably to the conclusion” that the defendants’ position was the correct one “as a matter of statutory construction”.
He said: “The effect of this conclusion is that Parliament has legislated for the reduction of general damages for non-whiplash 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.”
He argued that the tariff awards laid down by Parliament for the same concurrently caused losses “cannot be topped up by using the device of claiming also in respect of other injuries”.
Both the Association of Personal Injury Lawyers (APIL) and Motor Accident Solicitors Society intervened in the case.
APIL secretary Brett Dixon welcomed the confirmation that full damages must be paid for non-tariff injuries.
“But allowing any deduction of damages in mixed injury cases is not welcome as it risks undercompensating victims of negligence when they are already subject to reduced damages because of the whiplash tariff, which we have always argued is grossly unfair.
“And the fact that the court failed to set out how the level of deduction should be established will subject injured people to more uncertainty until further case law establishes exactly how that should be calculated in these cases.”
Ian Davies, partner and head of motor at defendant firm Kennedys, said: “Today’s judgment provides some clarity on the approach to be adopted. Perhaps unsurprisingly it confirms the approach in the 2011 Court of Appeal ruling in Sadler v Filipiak.
“With the comments of Davies LJ providing encouragement to the claimant market and the dissenting judgment of Vos MR ensuring the defendant has more than a little hope going forward, the focus will turn back to the detail of each medical report and the case presented on an individual basis. More appeals are a strong possibility.”
Mark Shepherd, assistant director, head of general insurance policy at the Association of British Insurers, described the ruling as “disappointing”, saying it “opens the door to double counting of injuries that could significantly erode the benefits of the reforms for premium-paying motorists”.
He continued: “It is unfortunate that the approach advocated by the Master of the Rolls was not adopted by the majority of the court, as this would have provided the clear guidance that is needed whilst ensuring access to fair and proportionate compensation for claimants.”
In a statement, Liverpool firm Robert James, which acted for the claimants, said: “After so much turmoil in the personal injury sector, we are very proud to have led the way in seeking guidance from the Court of Appeal on how damages should be assessed in mixed injury claims.
“At all times we have acted in the best interests of our clients and the wider sector when pursuing this appeal.
“In that regard, we can confirm that we received no funding (which was made available to the defendants and interveners via the MIB) or support from the claimant lobby in pursing this matter, and we have received no costs for pursuing this matter.
“Our involvement in this matter was key, as we feel that had we stepped aside, the court would have been presented with a binary ‘all or nothing’ choice.”
Andrew Wild, head of legal practice at First4InjuryClaims, commented: “The decision will assist with putting to an end the limbo that lawyers and claimants have found themselves in since the Official Injury Claim portal went live.
“Having clear guidance should enable the personal injury sector… to clear the bottleneck of cases that have been building up whilst waiting for this decision.
“Hopefully, it should help lower the average length of time it takes to settle a case in the portal, which currently stands at 227 days. By reducing delays in the negotiation process, we are confident that this will enhance the claims experience for our clients.”
A Law Society spokesman said it welcomed the ruling that damages for non-tariff injuries should be valued and awarded independently of tariff injuries.
“However, solicitors working in the personal injury space, and their clients, would welcome further guidance about how these damages are to be calculated.
“Without this certainty, claimants who are suffering from mixed injuries will continue to be unclear about the level of damages they are entitled to and it may take longer for them to seek and access redress.”
Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations, said the court had prioritised the needs and requirements of injured people.
“We urge both claimant and defendant representatives to work together better to improve settlement times and ensure consumers are getting the service they should.”
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