Mixed claims: Insurers fume while PI lawyers toast ‘major victory’

The claimant firm which led a successful Court of Appeal battle over personal injury damages has expressed delight at the ruling. But concerns have been expressed across the claimant and defendant sector that the long-awaited judgment fails to give the certainty needed. Further satellite litigation may be on the horizon.

Judges found in favour of upholding the county court’s decision to award damages for both tariff injuries and non-tariff injuries, agreeing with a small reduction to account for the overlap but upholding the principle that pain, suffering and loss of amenity should be assessed for both categories of injury.

But the consequences of the ruling were clouded by a dissenting judgment from the master of the rolls Sir Geoffrey Vos and practitioner groups have said they did not get the clarity they wanted about how compensation should be calculated in hybrid cases.

Liverpool firm Robert James Solicitors, which ran the cases, called the decision a ‘major victory for claimants’ as defendant submissions that victims should be compensated only once for PLSA were rejected.

The firm, which received no funding to litigate the matter in the Court of Appeal, said: ‘After so much turmoil in the personal injury sector, we are very proud to have led the way in seeking guidance from the Court of Appeal on how damages should be assessed in mixed injury claims. At all times we have acted in the best interests of our clients and the wider sector when pursuing this appeal.’

It is understood that the defendants sought permission to appeal to the Supreme Court and Robert James confirmed its intention to cross appeal, but the Court of Appeal has refused permission.

The expedition of the claims to the Court of Appeal was not supported by the whole claims sector, some of which wanted to wait for a bigger bank of cases to be tested before judges.

In the event, both the Association of Personal Injury Lawyers and the Motor Accident Solicitors Society intervened in the appeal, but they have expressed disappointment that so many elements are still unresolved by the ruling and that it allowed for any deduction at all.

‘We welcome the fact that the court confirmed the crucial point of principle that full damages must be paid for non-tariff injuries,” said Brett Dixon, APIL secretary.

‘But allowing any deduction of damages in mixed injury cases is not welcome as it risks undercompensating victims of negligence when they are already subject to reduced damages because of the whiplash tariff, which we have always argued is grossly unfair.

“And the fact that the court failed to set out how the level of deduction should be established will subject injured people to more uncertainty until further case law establishes exactly how that should be calculated in these cases.’

Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations, said the court had prioritised the needs and requirements of injured people.

‘Today’s judgment has been worth waiting for, above all because of the court’s view that compensation for mixed injuries should reflect each injury,’ he said. ‘It seemed to us perverse that an injured person received less compensation for, say, a fracture or laceration, because they also suffered a whiplash injury.’

But there was no such enthusiasm from the defendant sector which complained of uncertainty and warned of future court disputes.

Mark Shepherd, assistant director and head of general insurance policy at the Association of British Insurers, said ‘This is a disappointing judgment from the Court of Appeal that lacks the desired clarity for claimants and defendants on how to value mixed injuries.

‘It risks undermining the intent of the whiplash reforms to create a simplified and cost-effective system and opens the door to double counting of injuries that could significantly erode the benefits of the reforms for premium paying motorists.’

Ian Davies, partner and head of motor at defendant firm Kennedys, added: ‘With the comments of Davies LJ providing encouragement to the claimant market and the dissenting judgment of Voss MR ensuring the defendant has more than a little hope going forward, the focus will turn back to the detail of each medical report and the case presented on an individual basis. More appeals are a strong possibility.’

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