Introduction:
The Civil Liability Act 2018 and the Whiplash Injury Regulations 2021 brought into effect the Whiplash Reforms. These reforms introduced a tariff award for whiplash injuries following road traffic accidents on or after the 31st of May 2021; this being soft tissue injuries to an individual’s neck, back, and/or shoulders. A slightly increased tariff applies for injuries that are accompanied by psychological injuries. The tariff can be found at Paragraph 2(1)(b) at the following link:
https://www.legislation.gov.uk/ukdsi/2021/9780348220612
What the legislation omits to address is the overlap between whiplash (tariff) injuries, and other injuries (non-tariff). These are soft tissues injuries to areas that are not the neck, back, and shoulders, such as knees and wrists.
This forms the basis of the two cases brought before the Courts, Rabot v Hassam, and Briggs v Laditan.
Background:
Rabot v Hassam and Briggs v Laditan were heard by District Judge Hennessy, claims to which there were tariff and non-tariff injuries following a road traffic accident. In assessing the injuries, the judge referred to an existing judgement, Sadler v Filipiak, which enabled the judge to assess the injuries together to create a total sum, and then stepping back and reducing the figure to account for any overlap of pain, suffering, and loss of amenity.
Mr Rabot’s whiplash injuries, together with injuries to the left elbow, knee, and hips, totalled an award of £3,890.00. The judge then reduced the figure to £3,100.00 to account for any overlap. Mr Briggs’ injuries totalled £3,840.00, and the figure awarded was £2,800.00.
The judgement was appealed and heard in the Court of Appeal.
The Court of Appeal:
In bringing the claims to the Court of Appeal, the Claimant’s submitted that the approach that DJ Hennessy adopted should be followed; in that, the sums should be combined and then reduced accordingly. The Defendant submitted that the tariff award should be the starting point, upon which, additional small sums should be added when non-tariff injuries are established that are independent of the tariff injuries.
The judgement was decided by two to one, whereby the decision favoured the initial judgement given by District Judge Hennessy. This was given under the proviso that the total sum awarded could not be less than the award for the value of the non-tariff injury alone. For example, in Mr Brigg’s case, the sum awarded for his non-tariff injuries was £3,000.00. As such, the final award that was decided could not be £2,800.00 as District Judge Hennessy awarded in the first court.
The Court of Appeal judgement was subsequently appealed on the same grounds.
The Supreme Court:
The five judges of the Supreme Court supported the decision of the Court of Appeal and is summarised in the following.
The unanimous judgement addressed how the wording of the Act does not detract from how injuries are assessed at common law. As such, the court is able to make an award with reference to and to reflect combined injuries, as opposed to solely tariff which is confined to solely whiplash injuries. The judgement addresses how the Sadler approach was correct, and that a reduction should be made to account for any overlap in pain, suffering, and loss of amenity. It states how this adopted approach does not undermine the purpose of the legislation, as Claimants still receive a lower award if they present with mixed injuries.
Correct approach:
- Assess the tariff amount by applying the table in the 2021 Regulations.
- Assess the common law damages for PSLA for the non-whiplash injuries.
- Add those two amounts together.
- Step back and consider whether one should make an adjustment applying Sadler. The adjustment (which in this context will almost always be a deduction rather than an addition) must reflect, albeit in a rough and ready way, the need to avoid double recovery for the same PSLA.
- If it is decided that a deduction is needed, that must be made from the common law damages.
- However, the final award cannot be lower than would have been awarded as common law damages for PSLA for the non-whiplash injuries had the claim been only for those injuries.”
Comment:
The judgement in the UK Supreme Court has been one that is positive for personal injury practitioners and claimants alike. It recognises the need for thorough and appropriate compensation following road traffic accident claims, for claimants that have suffered with multiple injuries. Prior to this clarification from the courts, the initial Sadler approach would result in awards that would step back too far, and award sums that were below what individuals would now be able to receive in light of the present case law.
The practical impact of this judgement should be reflected in judgements to come, wherein claimants will not be financially hindered for bringing claims where there are whiplash and non-whiplash injuries, but instead, be compensated appropriately in line with common law and legislative damages.
Representatives from insurance companies have commented on the practical implications of this judgement; in that they believe it will only work to increase insurance premiums and disadvantage the many to advantage the few. However, the 2018 legislation and tariff system were introduced to reduce insurance premiums. It is a balancing act to which the public are yet to see any results in the payments that are made.
Nevertheless, the judgement has been welcomed by many. It provides clarity in an area of law that has arguably presented more uncertainty than stability since its introduction in 2018. Claimants and Defendants can now be confident in receiving and deciding upon awards for mixed injuries with this clarity from the courts. The law is wanting, for example, on the issues of minor psychological injuries, and what qualifies an uplift to the tariff amount; however, judgements such as this will work to develop and shape the law in the coming years.