Victory for claimants in landmark appeal over hybrid cases

The Court of Appeal has ruled that personal injury claimants can recover damages for both whiplash and non-whiplash injuries without one cancelling out the other.

In a landmark ruling today, the court said that in so-called ‘hybrid’ cases it was the right approach to compensate for loss of amenity under both heads, albeit reducing the final damages amount to account for some overlap.

The judgment appears to settle the debate over hybrid claims which has continued since the government’s Civil Liability Act introduced a tariff of set damages for whiplash only.

But the decision was only by a majority, with master of the rolls Sir Geoffrey Vos dissenting from his two colleagues. And some claimant lawyers have suggested the court has failed to provide the clarity they were seeking, given the ruling does not specify how ‘overlap’ deductions should be calculated.

In both Briggs and Rabot, cases heard at Birkenhead County Court and expedited to the Court of Appeal, the claimants had injuries which were subject to the tariff and injuries which fell outside the tariff. Around two-thirds of the total claims lodged with the Official Injury Claim portal are similarly classed as hybrid cases.

The county court had awarded damages based on loss of amenity applied to both injuries individually, albeit the district judge reduced the total.

On appeal, both the claimant solicitors and intervenors from the Association of Personal Injury Lawyers and Motor Accident Solicitors argued that the defendants’ solution of aggregating the two injuries would have the unintended consequence of depriving victims of full compensation for their other injuries. The further submitted that the principle of full compensation was applicable to damages for loss of amenity.

Giving the lead appeal ruling, Lady Justice Nicola Davies said defendants were effectively asking for the claimant’s right to common law compensation for PSLA to be ‘extinguished’.

She said the defendants’ approach ‘would serve to extend the compass of the 2018 Act to the non-whiplash injury which is contrary to the stated purpose of the statute and not required by necessary implication.

‘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.’

The judge added that upholding the defendants’ appeal could lead to claimants not pursuing a claim for whiplash as it would reduce any award for compensation for the non-tariff injury, and described such as a situation as ‘untenable’.

She upheld the district judge’s adjustment in Rabot and in fact increased the amount awarded in Briggs from £3,000 to £3,400.

Lord Justice Stuart-Smith agreed with her judgment, noting there was nothing in the legislation which removed the right to a common law assessment of other injuries. If parliament were so minded, he added, it would legislate in the same way it had done with whiplash injuries.

The master of the rolls disagreed, suggesting that the Civil Liability Act had allowed that the court should only award for the part of the tariff allowed for PSLA. The effect of the act was to reduce the general damages for non-whiplash personal injuries in cases where whiplash was sustained ‘even though the statute does not appear specifically to be directed at non-whiplash cases’.

A Law Society spokesperson said: 'We welcome the findings of the Court of Appeal that damages for pain, suffering and loss of amenity for non-tariff injuries are valued and awarded independently of tariff injuries. It is an important principle of access to justice that injured parties are able to access the full compensation to which they are entitled.

'However, solicitors working in the personal injury space, and their clients, would welcome further guidance about how these damages are to be calculated. Without this certainty, claimants who are suffering from mixed injuries will continue to be unclear about the level of damages they are entitled to and it may take longer for them to seek and access redress.'

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