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25 January 2023
Issue: 8010 / Categories: Legal News , Personal injury , Damages
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Mixed response to whiplash test case

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Personal injury lawyers have welcomed aspects of a landmark Court of Appeal decision on mixed injury cases, although some warned it could create ‘more uncertainty’.
Rabot v Hassam and Briggs v Laditan [2023] EWCA Civ 19 was expedited from Birkenhead County Court because the law is unclear on how damages for pain and suffering should be calculated in ‘mixed injury’ cases combining whiplash injuries, which are subject to a tariff, and other injuries that are not. APIL and MASS argued it was the intention of the Civil Liability Act 2018 that both types of damages should be added together.

The Court of Appeal confirmed this week that the pain, suffering and loss of amenity aspect of compensation in non tariff cases must be assessed on common law principles.

It upheld the county court’s ruling that a deduction should be made in mixed injury cases to avoid any risk of over-compensation—but omitted to set out how that deduction will be made.

Brett Dixon, secretary of the Association of Personal Injury Lawyers (APIL) which intervened in the appeal, along with the Motor Accident Solicitors Society (MASS), said: ‘We welcome the fact the court confirmed the crucial point of principle that full damages must be paid for non-tariff injuries.

‘The principle of full compensation takes precedence when identifying any overlap in the two types of damages, and this addresses the serious risk of under-compensation. 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 the court failed to set out how the level of deduction should be established will subject injured people to more uncertainty.’

Lubna Shuja, president of the Law Society, said: ‘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.’

Defendant personal injury firm Kennedys’ partner Ian Davies said the 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 [2011] EWCA Civ 1728. With the comments of Davies LJ providing encouragement to the claimant market and the dissenting judgment of Voss 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.’

Association of Consumer Support Organisations (ACSO) executive director Matthew Maxwell Scott welcomed the court’s judgment that ‘compensation for mixed injuries should reflect each injury. It seemed to us perverse that an injured person received less compensation for, say, a fracture or laceration, because they also suffered a whiplash injury’.

Matthew Currie, Chief Legal Officer, Minster Law said the decision ‘gives much needed clarity’.

Stewart McCulloch, managing director of digital ADR provider Claimspace, also welcomed the decision, noting that ‘potentially thousands of backlogged disputed cases can now be brought before the courts for resolution, although I hope many cases will be settled without litigation’.

However, McCulloch warned there could be an impending logjam of mixed injury cases since only about 1500 disputed Official Injury Claim (OIC) cases have been processed by the courts since June 2021, taking an average of nearly 20 weeks each. He said: ‘With volumes sent to court likely to increase exponentially and changes to case commencement processes in transition, we can expect to see delays at court becoming significant.’

Issue: 8010 / Categories: Legal News , Personal injury , Damages
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