Rabot v Hasam and Briggs v Laditan – Immediate Reactions

January 26, 2023

Barristers James Kinsey and Jack Scott of Exchange, the PI Chambers of the Year, provide an instant reaction to today’s Court of Appeal decision concerning injuries that include whiplash.

Introduction

The Court of Appeal has published its decision concerning two cases – Rabot v Hasam and Briggs v Laditan. The Claimants in both cases suffered whiplash and other injuries from road traffic accidents. Given the wide implications of these cases, they leap-frogged the usual appeal route and went straight to the Court of Appeal.

Whiplash Injury Reforms

Section 1 of the Civil Liability Act 2018 (”the Act”) gives a wide definition to Whiplash:

“Whiplash injury” etc (1) In this Part “whiplash injury” means an injury of soft tissue in the neck, back or shoulder that is of a description falling within subsection (2), but not including an injury excepted by subsection (3).

(2) An injury falls within this subsection if it is — (a) a sprain, strain, tear, rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder, or (b) an injury of soft tissue associated with a muscle, tendon or ligament in the neck, back or shoulder.

(3) An injury is excepted by this subsection if — (a) it is an injury of soft tissue which is a part of or connected to another injury, and (b) the other injury is not an injury of soft tissue in the neck, back or shoulder of a description falling within subsection (2).”

Section 3(2) of the Act created a provision for the Lord Chancellor to establish, by Regulations, a tariff for the payment of pain, suffering and loss of amenity arising from whiplash injuries. A slightly higher tariff was for established where minor psychological injuries are also present.

The Explanatory Notes of the Bill were explicit that “the continuing high number of whiplash claims increases the cost of motor insurance premiums… These measures disincentivise minor, exaggerated and fraudulent claims.”

It was anticipated that whiplash injuries (so called “tariff-injuries”) may be present alongside other injuries (so called “non-tariff injuries”). Section 3(8) of the Act provides: “Nothing in this section prevents a court, in a case where a person suffers an injury or injuries in addition to an injury or injuries to which regulations under this section apply, awarding an amount of damages for pain, suffering and loss of amenity that reflects the combined effect of the person’s injuries (subject to the limits imposed by regulations under this section).” It was expected that most claims of this nature would go through a new bespoke “Official Injury Claim” (”OIC”) online portal.

Application of the Reforms

In Rabot, the Claimant suffered soft-tissue injuries that were covered by the Regulations. These lasted 8 – 10 months. The Claimant also suffered injuries to both knees, which were not covered by the Regulations. These lasted 4 – 5 months. At trial, the Judge awarded £1,390 for the whiplash / tariff injuries and £2,500 for the knee / non-tariff injuries, for a total of £3,890. The Judge then took a step back and awarded £3,100 in recognition of the overlapping features between the injuries.

In Briggs, the Claimant suffered soft-tissue tariff injuries to the neck, upper and lower back for 1 – 3 months. The Claimant also suffered non-tariff injuries to the hips, chest, elbow for 6 – 9 months. At first blush, the Judge awarded £840 for the tariff injuries and £3,000 for the non-tariff injuries. Taking the £3,840 total, the Judge then reduced the overall award to £2,800 to account for the overlap between the two injuries and avoid any double compensation.

Appeal Grounds

The Defendants (effectively the negligent drivers’ insurers) appealed against these decisions. Their position was that the tariff award should encompass all PSLA elements of any injuries that include any whiplash. In effect, only a very small amount should be awarded in addition to the tariff.

Conversely, the Claimants’ primary position was that the Judges erred in applying a discount for the overlap between the tariff and non-tariff injuries. Their view was the correct approach was simply to add the tariff and non-tariff injuries together, with no reduction. That position would have awarded £3,890 to Rabot and £3,840 to Briggs.

The Claimant’s secondary position was that the tariff and non-tariff injuries should be aggregated and then a deduction for totality should be applied, which was, in fact, the approach taken by both first-instance judges.

Discussion

In a 2-1 judgment, the Court of Appeal dismissed the Defendants’ appeals. The majority noted that whilst Parliament was explicit in addressing the “mischief” of exaggerated or fraudulent minor whiplash claims, there was “nothing in the wording of the statute or in the extra Parliamentary material which suggests, let alone demonstrates, an intention to alter the common law process of assessment for, or the value of, non-tariff injuries. The legislation was directed to and confined exclusively to whiplash injuries” [§26].

Noting that Parliament was taken to have known the application of the law when it enacted the Act, the Court found that the Regulations encroached upon common-law judicial discretion, but only upon the whiplash element. That is to say, where the Act was silent, common law principles should continue to prevail.

The Court of Appeal affirmed the approach set out in Sadler v. Filipiak [2011] EWCA Civ 1728 (”Sadler”) that: “It is … always necessary to stand back from the compilation of individual figures … 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… An adjustment and occasionally a significant adjustment may be necessary.”

At §38, the Court set out the approach that other courts should follow in such cases:

(i) Assessing the whiplash tariff.

(ii) Assessing the award for non-tariff injuries.

(iii) “Stepping back” to reflect the approach set out in Sadler, whilst recognising that the tariff award is lower than common law damages were. In doing so, the final award cannot be less than if only non-tariff injuries had occurred.

The Court held that applying the Defendants’ approach would “effectively extinguish” the Claimant’s right to common law compensation for PSLA caused by the non-tariff injury where whiplash is a concurrent cause of that injury [§39]. This would extend the Act to non-whiplash injuries, which was beyond the stated intentions of the statute.

It was also noted that such an approach could result in Claimants being awarded radically different amounts for identical non-whiplash injuries, depending on whether whiplash injury was also sustained, in which the Claimant suffering whiplash would receive much less compensation than the Claimant without.

On that basis, both appeals were dismissed. Essentially, the Claimant’s secondary position prevailed. In a solitary dissent, the Master of the Rolls took a more black and white literalist approach. He notes Section 3(2) of the Act states: “[t]he amount of damages for pain, suffering and loss of amenity payable in respect of the whiplash injury … is to be” [His emphasis].

Accordingly, he argued that in mixed injury cases, the tariff covers all PSLA damages, with no compensation for the same loss of PSLA caused by another injury. He argued that “the statute has dictated the compensation that is to be paid for that very loss.”

Impact

• The most obvious impact of this judgment will be to allow mixed-injury cases to attract greater damages than would have been the case. Some 24,000 new claims per month (over 2/3 of the total) contain mixed injuries, which may now all secure both tariff and non-tariff damages. This provides some certainty for Claimants and those acting for them. Over 420,000 cases have been issued through the OIC. 84,000 (20%) of these have concluded. Of these, the courts have disposed with only 1,500 (0.4%). It is reasonable to assume that many cases have been paused by the Claimant, pending the outcome of this decision. A tsunami of new cases is now expected by some insurers.
• Claimants who were previously content for other injuries to be included within the totality of their whiplash award may now articulate those other injuries with greater clarity and force, or omit claiming damages for whiplash altogether. As such, it will be interesting to observe with the benefit of a few years distance whether the whiplash reforms actually resulted in lower total awards, or simply a different blend of awards with similar totals.
• It is also foreseeable that the format of Claimants’ medical reports will change, and include more explicit reference to both whiplash and non-whiplash injuries. Relatedly, the Court of Appeal had been invited to provide further guidance on both what it considered medical experts should address in their reports concerning the cause of injuries and the proper approach to “stepping back”. The Court did not provide this guidance in its judgment.
• More broadly, the judgment serves to reaffirm both the Sadler and Judicial College Guidelines principles. The Court of Appeal fully accepted that Parliament has the right to extinguish common law discretion. But it must do so explicitly, rather than by inference. To that extent, this judgment represents a fortification of a common law approach and judicial discretion.
• Nevertheless, it remains the case that a Claimant who suffers a whiplash injury from a sporting accident is likely to attract ten times more compensation than a Claimant who suffers an otherwise identical whiplash injury in a car accident. This can most charitably be described as a “quirk” of the current system.

Conclusion

This is a definitive judgment, from which Claimants can take some comfort; the prospect of under-compensated awards for cases with mixed-injuries has been averted. Numerous procedural delays and the Coronavirus pandemic mean that many OIC whiplash cases are yet to be issued, let alone heard. As such, this remains uncharted territory. The full implications of this altered approach will only become fully clear when applied in contested hearings at scale. Until then, those acing for Claimants would would be well-advised to assist the court with robust skeleton arguments that highlight this judgment.