The Court of Appeal has handed down judgment in the conjoined appeals of Rabot v Hassam and Briggs v Laditan concerning how individuals who have sustained a whiplash and non-whiplash injury should be compensated. The judgment is of importance and interest to all involved in personal injury claims arising out of a road traffic accident and goes someway to providing certainty in the post whiplash reforms world.
The majority decision of LJ Nicola Davies and LJ Stuart-Smith found that the legislation was confined and directed to whiplash injuries. The court set out the correct approach to an assessment of damages in respect of a tariff and non-tariff award where concurrently caused PSLA is present. The three steps are:
(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.
In respect of Rabot, the original award of £3,100 was upheld. In Briggs, the overall award was increased from £2,800 to £3,500.
It would be fair to say that the claims industry has been on hold pending clarity on how whiplash and non-whiplash injuries are to be valued. Over 424,000 claims have been submitted to the OIC Portal since its inception yet only 86,466 claims have settled (approximately 20%). In light of clarification given by the Court of Appeal, it is anticipated that more medical reports will be released to insurers as claimant solicitors attempt to move cases to conclusion now they can advise clients on the value of their injuries.
Whilst any clarification is welcomed in a world of uncertainty, insurers will continue to be concerned at how the UK has gone from having the weakest necks in Europe to the weakest hips, knees and wrists. Given the huge increase in non-whiplash injuries following the implementation of the Civil Liability Act 2018, the onset, manifestation, duration and attribution of such injuries will continue to be closely examined and monitored, ensuring they are genuine rather than a cynical attempt to drive up an award of damages. In Gray v Holmes, a first instance decision, it was made clear that should an insurer wish to challenge the causation of such non-whiplash injuries within Part 27B litigation, they are at liberty to do so, and can seek a direction from the court for the claimant to attend the hearing for cross examination.
It is noteworthy that the Master of the Rolls, Sir Geoffrey Vos, provided a strong dissenting judgment stating at paragraph 58:
“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”.
Such an approach would clearly deter the mischief identified above but was a minority view. It remains to be seen whether Parliament will make any statutory amendments as invited by LJ Stuart Smith.
We will continue to monitor injury trends post-Rabot and whether there continues to be an uptick in non-whiplash injuries, which would threaten to undermine the very purpose of the reforms.
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