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Court of Appeal Decision on the Approach to Mixed Injuries

Hassam & Anor v Rabot & Anor [2023] EWCA Civ 19

Mixed Response to Mixed Injuries – Hassam & Anor v Rabot & Anor [2023] EWCA Civ 19

On Friday (20 January 2023), the Court of Appeal handed down judgment in the mixed injury test cases of Rabot v Hassam and Briggs v Laditan [2023] EWCA Civ 19 – in answer to the question:

“How is the court to assess damages for pain, suffering and loss of amenity where the claimant suffers a whiplash injury which comes within the scope of the 2018 Act and attracts a tariff award stipulated by the Whiplash Injury Regulations 2021, but also suffers additional injury which falls outside the scope of the 2018 Act and does not attract a tariff award?”

The decision can be found here.

The Background

The Civil Liability Act 2018 (“the Act”) removed certain claimants' rights to full compensation for whiplash injuries, but not for other kinds of injury. The Act and Whiplash Injury Regulations 2021 (“the Regulations”) sought to limit the value of general damages for pain, suffering and loss of amenity (PSLA) payable in respect of whiplash injuries, subjecting such claims to a statutory tariff.

Section 3(8) of the Act makes clear:

“Nothing in this section prevents a court, in a case where a person suffers an injury or injuries in addition to [a whiplash injury], awarding an amount of damages for [PSLA] that reflects the combined effect of the person's injuries”

The Act and the Regulations remained silent as to how the courts were to assess the combined damages in these mixed injury cases. As a result, the courts adopted a simple A+B approach – awarding a set award for whiplash injuries as outlined in the Regulations (‘A’) together with a separate amount for any other injuries that fall outside the Regulations assessed in accordance with the Judicial College Guidelines (‘B’).

Pitchford LJ in Sadler v Filipak [2011] EWCA Civ 1728 refined the A+B approach, providing at [34] 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.”

“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.”

(writer’s emphasis added)

Rabot and Briggs in the County Court

Both test cases started out in Birkenhead with District Judge Hennessy. She had provided detailed judgments in which she adopted broadly the same approach of assessing damages in respect of whiplash and other injuries in the two cases of Rabot and Briggs. DJ Hennessy adopted a stepped approach, in accordance with the guidance of Pitchford LJ, namely:

“(a) to first determine the nature of each injury;

(b) to then value the whiplash injury in in accordance with the tariff laid down by the Whiplash Injury Regulations 2021 (the Regulations) and valued the other injuries in accordance with the common law;

(c) to add the two figures together and then step back exercising the type of judicial discretion that judges have been doing over many years; and

(d) to reach a final figure by making an appropriate deduction (if any).”

The Leapfrog from the High Court

The appeals against the decisions in Rabot and Briggs were initially filed in August 2022.

HHJ Wood transferred the appeals to the Court of Appeal pursuant to CPR 52.23(1) and directed them to be considered together – commenting that they raised an important question as to the proper construction of section 3 of the Civil Liability Act 2018, requiring appellate guidance.

The expedited appeals were heard by the Court of Appeal in November 2022. The hearing of the appeal can be viewed here (part 1) and here (part 2).

The Decision of the Court of Appeal

Nicola Davies LJ, in her leading judgment, approved the approach taken by DJ Hennessy, with one caveat: the final award (after a Sadler adjustment) cannot be less than would be awarded for the non-tariff injuries if they had been the only injuries suffered by the claimant.

The decision concludes, from [38] onwards:

“[…] the approach of the court to an assessment of damages in respect of a tariff and non-tariff award 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 the Sadler adjustment, recognising that the sum included in the tariff award for the whiplash component is unknown but is smaller than it would be if damages for the whiplash component had been assessed applying common law principles.

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.”

The second judge on the panel of three, Stuart-Smith LJ, sided with Nicola Davies LJ and formed the majority on the point – adding to the lead judgment only to explain why he was respectfully unable to agree with the dissenting opinion of Sir Geoffrey Vos, Master of the Rolls.

To disagree to agree to disagree

Interestingly, the dissenter, Vos MR, preferred the approach suggested by the defendants. He based his opinion on section 3(2) of the Act, which provides “damages for pain, suffering and loss of amenity payable in respect of the whiplash injury […] is to be" (emphasis added) the amount in the Regulations.” He concluded that all PSLA common to both the tariff and non-tariff injuries is to be treated as fully compensated for by the tariff award with only a small amount would be appropriate for any additional PSLA, if any can be exclusively attributed to the other injuries.

The view presented by Vos MR was said by Stuart-Smith LJ to be untenable in light of the policy considerations set out at [4] of the Court of Appeal decision

This concern was footnoted in the decision at first instance, DJ Hennessy commenting:

“In terms of the actual valuation of the non-tariff injury, if I have two claimants with identical knee injuries, one caused in an RTA where the claimant also has the misfortune to have a whiplash injury and one caused when the claimant fell from a ladder at work, why should the valuation to be placed on the knee injury in any way differ?”

This concern is echoed in the judgment of Nicola Davies LJ, suggesting at [39]:

“It would also have the effect of claimants being compensated in radically different amounts for their non-whiplash injuries depending upon whether a qualifying whiplash injury has been sustained. It could lead to a position where a claimant would not pursue a claim for whiplash injury as it would have the effect of reducing any award for compensation for the non-tariff injury. I regard such an approach as untenable. Accordingly, and for the reasons given and subject to the views of the Master of the Rolls and Stuart Smith LJ, I would dismiss the appeals in Rabot and Briggs.”

Standing back, the view of Vos MR is perhaps easier to reconcile in reverse.  Instead, in keeping with the majority view, it is the common law award that compensates fully for the common pain, suffering and loss of amenity of the mixed injury. It is then the tariff amount that becomes the small sum to compensate for the additional PSLA of whiplash – that being Parliament’s mischief at [28]:

“The whiplash reform programme [reducing] the amount of damages recoverable for the whiplash injury in order to discourage false or exaggerated whiplash claims. The compromise effected by the legislation derogates from the principle of 100% compensation pursuant to the common law. An award pursuant to the legislation is significantly lower than a common law assessment of damages made pursuant to the Judicial College Guidelines.”

As identified by Nicola Davies LJ at [36], it is clear:

“A factor in support of this approach is that in standing back, a court will be aware that it is only the non-tariff award which can be reduced [and] any fear of windfall damages is negated by the fact that Parliament has significantly depressed the value of PSLA for the tariff injury.”


This summary was provided by Joshua Cullen, current First Six Pupil with 25 Canada Square Chambers.

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