Whiplash-tariff & Non-tariff Injuries: The Common Law Has the Answer

Fri, 20 Jan 2023

Just how do you value damages where there are injuries falling within the tariff regime for whiplash injuries and non-tariff injuries? A question so vexing for the courts, claimant firms and motor insurers that they got a leap-frog to the Court of Appeal to settle it definitively. And settled definitively it has been in Rabot v Hassam, Briggs v Laditan [2023] EWCA Civ 19. Well, definitive save that the Master of the Rolls dissented.

Nicola Davies LJ, with whom Stuart-Smith LJ agreed in his own judgment, held that the answer posed by the Civil Liability Act 2018 and consequential Whiplash Injury Regulations 2021 was answered by the fact that:

“Parliament has chosen to legislate into the area of the common law of England and Wales but having done so, and in the absence of any clear indication to the contrary, it is presumed not to have altered the common law further than was necessary in order to remedy the mischief which was the focus of the 2018 Act” [27]

Accordingly, since the 2018 Act merely interfered with how the court values the whiplash component, reducing it from the ‘fair and reasonable compensation’ that a common law assessment of general damages for PSLA would have reached, the Act does not interfere with the non-tariff injury, which must still be assessed in the usual way. The question is then simply how to take the final stage of ‘stepping back’ to consider the totality of the damages. That step is still taken, so it is not simply a case of adding up the tariff and non-tariff injuries. The reduction should not, however, go below the amount for the non-tariff injury. The answer has very clearly been given at [38]:

“It follows that 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:

  • assess the tariff award by reference to the Regulations;
  • assess the award for non-tariff injuries on common law principles; and
  • “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 dissent from the Master of the Rolls was founded on the basis that the Act does interfere with the common law approach, a decision he reached because of the wording of the Act. With the greatest of respect for the Master of the Rolls, some of his reasoning in support tends to suggest an unrealistic approach to valuation of general damages for PSLA more generally. Indeed, at [66] the difference between his approach and the common law approach seems too thin to be able to slip a piece of paper between. Having relied heavily on the findings of fact that the loss of amenity from tariff and non-tariff injuries was the same, he then stated:

“The principled solution is to apply the statute and then work out what consequences of the other injuries are not caused by the whiplash as well, and assess the proper common law compensation for those additional consequences – in these cases the pain and suffering caused by the other injuries.”

A statement that could easily have been in either of the majority judgments.

That there is a near complete overlap in loss of amenity, or it is simply impossible to untangle, will usually be the case with these sorts of injuries. As such, the complaint that the adoption of the Sadler stepping back (from Sadler v Filipiak [2011] EWCA Civ 1728) “does not seem to me to be adequately scientific” [69] is to ignore that Sadler presently reflects the common law. It is a pragmatic, proportionate and realistic approach, far from perfect but far from the fatal flaw the Master of the Rolls seems to think it is. I would be interested to know what scientific, but proportionate and low cost, approach would allow judges to make the specific findings of fact as to the loss of amenity from different injuries and so valuing of just the PS element of what is a PSLA award. It is entirely common for a claimant to have no realistic loss of amenity and the court to assess damages on that basis.

For a far more coherent rebuttal of the Master of the Rolls approach, I cannot improve upon the judgment of Stuart-Smith LJ. But given that the Master of the Rolls was dissenting, the main point of the case, dear readers, is the suitably succinct statement of principle from Nicola Davies LJ at [38], quoted above.

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