Assessing damages in mixed injury cases

Hassam and Another v Rabot and Others [2023] EWCA Civ 19, which involved two road traffic accidents, came before the Court of Appeal because of a question over section 3 of the Civil Liability Act 2018. The question was how should the court assess damages for pain, suffering and loss of amenity (PSLA) where the claimant suffered a whiplash injury that came under the tariff set down by the 2018 act and the Whiplash Injury Regulations 2021 (the Regulations), but also suffered additional injury which fell outside the scope of the 2018 act and so did not attract a tariff award. 

Lady Justice Davies, giving the majority judgment of the Court of Appeal, said that the 2018 act had been enacted to reduce motor insurance costs. The 2018 act said that where a person suffered whiplash, and the duration of the injury did not exceed two years, the amount of damages for PSLA would be an amount specified in the regulations – a tariff award. Such an award pursuant to the act was significantly lower than the common law assessment of damages made pursuant to the Judicial College Guidelines – a non-tariff award. However, section 3(8) of the 2018 act recognised that there would be ‘mixed injury’ cases in which there would be an assessment of damages for PSLA reflecting the combined effect of injuries in cases of tariff and non-tariff cases.

The problem was that the 2018 act and the regulations were silent as to how the courts were to assess damages in these mixed injury cases.

Davies LJ said that the core function of PSLA damages, according to Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39, was to ‘nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong’. Where a number of injuries were sustained there would frequently be an overlap in the various symptoms. Simple aggregation of the individual injuries would represent overcompensation. The court in Sadler v Filipiak [2011] EWCA Civ 1728 said that the correct approach in multiple injury cases was to consider whether the award for PSLA 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, it should be smaller than the sum of the parts in order to remove an element of double counting.

Both of the present cases had been decided by the same judge. In the first case, the claimant suffered whiplash, namely soft tissue spinal injuries (which came under the tariff), together with soft tissue injuries to both knees (which did not come under the tariff). The judge awarded £1,390 for the tariff injury and £2,500 for the non-tariff injury, before stepping back and considering the overlap between the two. The judge then made an overall award of £3,100.

In the second case, the claimant suffered soft tissue injuries to the neck, upper and lower back (tariff injuries) and to the left elbow, knee and the hips (non-tariff injuries). The judge adopted the same procedure as in the first case, but stated that the reduction had to come from the non-tariff amount given that the tariff valuation was fixed. The judge noted that most of the pain, suffering and limited loss of amenity appeared to flow from the whiplash injury. The judge assessed the tariff award to be £840, the non-tariff award to be £3,000 and then reduced the latter figure by £1,040 to recognise the ‘clear overlap on the basis of the medical evidence’. She made a total award of £2,800.

Davies LJ said that there was nothing in the wording of the statute or in the extra parliamentary material that suggested an intention to alter the common law process of assessment for, or the value of, non-tariff injuries.

In a mixed injury case, the court was required to carry out two separate assessments, tariff and common law. An intrinsic part of a common law assessment in which more than one injury was sustained was, following Sadler, to step back and to assess whether the total award represented double counting. In a case where one award was in respect of a tariff injury, the court was faced with the difficulty of not knowing what, if any, allowance had been made in the tariff award for PSLA arising from a concurrent cause.

However, it was only the non-tariff award that could be reduced. The tariff award had to stay as it was. Consequently, the approach of the court should be:

i)    to assess the tariff award by reference to the Regulations;

ii)    to assess the award for non-tariff injuries on common law principles;

and

iii)    to ‘step back’ in order to carry out the Sadler adjustment, recognising that the sum included in the tariff award for the whiplash component was unknown but was smaller than it would have been if damages for the whiplash component had been assessed applying common law principles.

There was one caveat, namely that the final award could not be less than would be awarded for the non-tariff injuries if they had been the only injuries suffered by the claimant.

Consequently the deduction made by the judge in the first case was neither wrong in principle nor unreasonable. However, in the second case, the judge’s adjustment resulted in a total figure which was lower than the assessment for the non-tariff injury. Given the fact that the tariff award was lower than an award assessed pursuant to common law principles, that adjustment was too great.

In Davies LJ’s view, there should be a reduction of £340 to the non-tariff award, giving a total award of £3,500. This would represent appropriate compensation for the injuries sustained.

Malcolm Johnson is legal director and head of child abuse compensation claims at Lime Solicitors, London