Once again, Shannon Eastwood successfully appeared on behalf of the Claimants (acting as Respondents in the appeal) in the Court of Appeal case of Hassam v Rabot [2023] EWCA Civ 19 led by Benjamin Williams KC and instructed by Robert James solicitors. A full copy of the judgment is available here.

This appeal concerned two cases, Rabot and Briggs, where a motorist suffers both a whiplash injury and any other injury, commonly called ‘mixed injury’ cases. The Civil Liability Act 2018 (“the 2018 Act”) removed certain motorists’ rights to full compensation for whiplash injuries, but not for other kinds of injury. The intention of the reforms was to significantly reduce compensation for whiplash injuries (by up to 90% depending on the tariff) and streamline the assessment of such injuries in portal system without costs. Instead, claimants with a mixed injury claim receive a tariff award as stipulated by the Whiplash Injury Regulations 2021 (“the Regulations”) for any whiplash injuries depending on the length of the injury, and general damages for the pain, suffering and loss of amenity (PSLA) for any other injuries they may have sustained that are not caught by the 2018 Act (i.e. the non-whiplash injuries).

The problem arises when the court has to reconcile those two types of award, namely, (i) the statutory tariff award for whiplash injuries and (ii) the judicial award of general damages for the PSLA for any other injuries (i.e. the non-tariff award). As the Court of Appeal recognised, there are just three possibilities: (i) there is no discount between the two awards; (ii) the court applies a modest discount to the combined value of the awards to reflect the overlap of PSLA starting with most valuable injury in the usual way; or (iii) the court starts with the smaller tariff award (as it is usually the most serious injury) and then applies a modest increase to reflect the additional PSLA caused by the other injuries.

The statistics show that there are tens of thousands of portal cases every month and the difference between each of the three approaches above would have amounted to more than 100 million pounds per year in compensation to victims of road traffic accidents. Motor insurers (i.e. the Defendants and the Appellants in this case) were arguing that the modest statutory tariff award for the whiplash injury has already compensated the Claimant for the entirely of any overlap in PSLA in most cases and they should only be entitled to a small increase for any PSLA attributably exclusively to the other injury. The Claimants (i.e. the Respondents) cross-appealed, supported by the Interveners APIL and MASS, arguing that there should be no discount between the statutory award and the general damages. The Court should assess the general damages for the other injuries in the usual way, excluding the whiplash injury, and could not safely assume that there was any overlap of PSLA in those circumstances.

The majority of the Court (the Master of the Rolls dissenting) adopted the middle ground of the second approach (ii) described above and, therefore, upheld the decision of the judge at first instance, District Judge Hennessy. The correct approach to an assessment of damages for mixed injury cases in respect of a tariff and non-tariff awards 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 any necessary adjustment so as to avoid any possible overcompensation. 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.

This approach follows the ’totality principle’ described in Sadler v. Filipiak [2011] EWCA Civ 1728 (Sadler):

“It is … always necessary to stand back from the compilation of individual figures, whether assistance has been derived from comparable cases or from the [Judicial College] 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.”

The majority of the Court of Appeal, therefore, confirmed that this remains the correct approach. In the case of Briggs, the cross-appeal was successful as the Judge had applied too steep a discount and awarded less for the combined value of all the Claimant’s injuries than she would have awarded for the Claimant’s ‘other injuries’ alone (i.e. the Claimant would have recovered more in damages if she never had the whiplash injury). The Court of Appeal confirmed that his was an error in principle and the combined effect of both awards should usually result in a larger amount than the lower of the two figures.

Interestingly, the Sir Geoffrey Vos, Master of the Rolls, dissented and preferred the third approach (iii) above suggested by the Defendants on the main basis that section 3(2) of the 2018 Act provided that: “[t]he amount of damages for pain, suffering and loss of amenity payable in respect of the whiplash injury … is to be” (emphasis added) the tariff amount in the Regulations. Vos MR found that once the Claimant had been compensated for any loss of amenity within the tariff award then it could not be taken into account in any judicial assessment of the other injuries on a different common law basis. Seeking more would have violated section 3(2) of the 2018 Act.

Davies LJ and Stuart-Smith LJ in the majority, however, accepted that the legislation was directed to and confined to whiplash injuries. In particular, the specific mischief which necessitated the Government’s intervention in the common law assessment of personal injury claims was fraudulent claims for whiplash injuries resulting from a motor vehicle accident. The compromise effected by the legislation derogates from the principle of a 100% compensation pursuant to common law in respect of the whiplash injury or injuries. No provision in the 2018 Act, either expressly or by necessary implication, provides that non-tariff injuries should be assessed by reference to anything other than common law principles. For now at least, therefore, the common law remains paramount in the assessment of ‘other injuries’ in the usual way utilising the Judicial College Guidelines and comparable quantum cases.

Both parties were refused permission to appeal. Any further application for permission would have to be pursued before the Supreme Court and we will be sure to keep you updated with the progress of this claim.

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