Court of Appeal decision on mixed injury cases: What does it mean for you?

The Court of Appeal handed down its judgment on 20 January 2023 on the dual appeals of Rabot v Hassam and Briggs v Laditan. The appeals related to two first instance decisions from Birkenhead County Court from June/July 2022 which determined how the court should approach valuing ‘mixed injury cases’ following the introduction of the Whiplash Injury Regulations 2021 (“the regulations”).

The regulations introduced tariffed damages for whiplash lasting less than two years. The term ‘mixed injury cases’, in the context of this appeal decision, refers to situations where a claimant has suffered both a whiplash injury, to be valued in line with the tariff set out in the regulations, and at least one other injury to be assessed using more traditional common law methods, usually with reference to the Judicial College Guidelines (“JCG”) and relevant case law.

These two cases were among the first decisions on the point. Those familiar with the whiplash reforms will know that the architects of the reforms offered no assistance on how to value such mixed injury cases, preferring to leave it to the courts. With no statutory guidance available, these two very early decisions were leap-frogged to the Court of Appeal with some urgency in the hope that the judgment would give the industry the steer it needed.

The lower court decisions

It was conceded by both Rabot and Briggs (“the claimants”) that when assessing mixed injury cases, the court should:

(i) assess each individual injury element separately using the tariff or the traditional method
and

(ii) add them together

The difference between the two cases is that in Rabot, claimant counsel said that the court should then:

(iii) “step back” in order to carry out any necessary adjustment to the total figure arrived at, so as to avoid any possible overcompensation (known as “the Sadler approach”, as it was established in the case of Sadler v Filipiak)

In Briggs, the same claimant counsel changed approach and argued that ‘step (iii)’ was not required when one of two injuries was a tariff injury; the “step back and adjust” requirement only applied to situations of multiple injuries that are assessed via traditional common law methodology.

Those two positions - to step back and discount, or not - became the claimants’ two alternative positions at appeal.

Hassam and Laditan (“the defendants”) were not represented by the same counsel in the lower court. Defendant counsel in Hassam said that whilst the ‘Sadler’ approach of individual assessment, add together and discount was broadly correct, the court needed to start from the position that the whiplash injury was the main injury and so only value the second injury based on the pain, suffering and loss of amenity (PSLA) additionally suffered as a consequence of that second injury. It was submitted that the medical evidence must be forensically analysed to assist with that exercise. Counsel offered that ‘minimal adjustment’ - as sought by Rabot - could only be justified if the medical evidence indicated that the PSLA flowing from the second injury proved that second injury was significant on its own.

In Laditan, counsel for the defendant focussed chiefly on responding to Briggs’ primary submission that the tariff and non-tariff injury should simply be added together, without discount. She then offered that the award for the non-tariff injuries (of which there were five) ought to be modest, focusing on the lack of evidence as to loss of amenity.

The common ground in the defendants’ submissions was that the medical evidence did not properly justify a significant award for the non-whiplash injuries.

The same judge decided both cases and elected to stick with the (i) (ii) and (iii) approach above, and rejected the idea put forward by counsel for Briggs that simply adding the tariff and non-tariff assessment together, without discount, was appropriate. Relevant to any analysis of the appeal judgment is the fact that she recognised in Briggs v Laditan that the medical evidence suggested no loss of amenity flowing from the non-tariff injuries and sought to reflect that fact in the award. She did that by initially assessing the non-tariff injuries without reduction for the fact that no loss of amenity flowed but by applying a handsome discount (‘step (iii)’) to the overall award to reflect that fact. In other words, she sought to reflect the fact that the non-tariff injuries were on the ‘less significant end of the scale’ at ‘step (iii)’ - within the discounting exercise - rather than with the initial assessment of those injuries (‘step 1’) before moving to steps ‘(ii)’ and ‘(iii)’.

The defendant appealed in both cases on the basis that the overall awards were too high. The claimant also appealed in Briggs v Laditan on the basis that the judge ought not to have rejected the ‘simply add together’ approach and so ought not to have undertaken the ‘step back’ exercise and then discounted as she did. Of interest, when deciding Briggs v Laditan, DJ Hennessey recognised that ‘...the calibration of PSLA to be taken into account as compensated for by the whiplash tariff award is different to the calibration involved in the non-tariff award. That is new and somewhat unfamiliar territory…’. Within the appeal submissions it was clear that both sides recognised that applying the Sadler approach to this new situation was tricky and so judicial guidance was needed.

The appeal decision

Perhaps unsurprisingly to anyone who had the inclination to watch the hearings live-streamed on the Court of Appeal YouTube channel, the judgment upheld the methodology which the lower courts had adopted. The (i) (ii) and (iii) approach detailed above was to be followed and the lower court’s rejection of the idea that there was to be no discount to the total arrived at after the tariff and non-tariff assessment had been added together was correct. Discount was appropriate.

Of significance, the Court of Appeal expanded Sadler, adding a point not discussed in the lower court in either case, being that the ‘total value arrived at’ after the Sadler approach was followed could not be less than the value of the non-tariff injuries when assessed in isolation before the ‘adding together’ exercise.

Does this judgment help insurers and claimants as they look to negotiate mixed injury cases now?

The first thing to say is that the judgment focussed chiefly on the construction of section 3 of the Civil Liability Act 2018 (“the Act”), which was barely mentioned in the lower court, and determined that the Act and regulations made under it:

• are focussed only on altering how whiplash is valued so only the whiplash award can be different to what it would have been before the reforms
• do not fundamentally alter the basis of assessment of damages for non-whiplash injuries

The Master of the Rolls disagreed with those determinations in his dissenting judgment. He found that the Act did indeed have the effect of changing how non-whiplash injuries were to be assessed when assessed alongside a whiplash injury. Whilst insurers might have hoped for that conclusion, it is not where we are.

Of itself, not reaching that ‘ideal’ conclusion is not overly problematic. Those looking to assess qualifying whiplash injuries only ever look to value such injuries using the tariff. Moreover, it was not contended in the lower court that how damages for non-whiplash injuries are to be assessed is altered by the reforms and most insurers accept that as fair. The ‘adding together’ exercise is also not tricky.

The real conundrum – upon which guidance was sought – was ‘how does the exercising of discounting for the combining multiple injuries now work if the valuations of those injuries are based on awards arrived at via different approaches, especially when one of those initial assessments (the tariff assessment) cannot be adjusted?’

If multiple injuries are all assessed based upon common law assessments (JCG and case law), it is easy to determine how to adjust the separate valuations for overlap because each separate valuation has been reached based on the same type of assessment and both can be discounted, as appropriate. But for these new mixed injury cases, regrettably, the judgment offers little.

The Court of Appeal’s answer is to simply say “follow Sadler” but it offers nothing on how to apply discount to this new scenario. Equally, it does not give comment on whether the initial assessment of the non-tariff injury might now be different with one eye on the ‘new’ discounting exercise that is to follow.

The judge in the lower court in Briggs v Laditan recognised that the non-tariff injuries caused no loss of amenity. She wanted to reflect that in the final award but is seems she undertook the exercise (of discounting) ‘the wrong way around’. DJ Hennessy started with a broad assessment of the non-tariff injuries of £3,000 but then applied a significant discount as part of ‘step (iii)’ saying ‘The majority of the pain, suffering and what limited loss of amenity there is, appears to flow from the whiplash injury… There is nothing in terms of particular loss of amenity that can be attributed to the knee/chest/elbow/hips alone’.

The Court of Appeal said that she ought not to have ‘discounted’ the overall award to a figure below her ‘in isolation’ assessment of the non-tariff injuries (of £3,000), so refused to allow a final award below that sum. But what about the fact that DJ Hennessey wanted to award less, because she knew that no loss of amenity flowed from the non-tariff injuries?

Frustratingly, the Court of Appeal did not take the opportunity to undertake the whole valuation exercise afresh. Had it done so, had it said ‘now that we have told you what to do we will apply what we are saying to the facts of Briggs v Laditan’, it might have echoed DJ Hennessey’s recognition of there being no loss of amenity flowing from the non-tariff injuries and placed a lower starting value on those injuries. Had DJ Hennessey known what she knows now – which is that once the two assessments were added together, the discount could not take the final award below the starting valuation of the non-tariff injury in isolation - maybe she would have sought to reflect the fact that no loss of flowed from the non-tariff injuries at ‘step (i)’, rather than ‘step (iii)’. Maybe she would have started with £2,000 for the non-tariff injuries rather than £3,000? Knowing how the discount element of the three steps will work does, it seems, have the potential to effect initial valuations.

Where are we now?

The judgment fails to provide the detailed guidance which was hoped for. The court’s blunt direction that the industry should simply ‘apply Sadler’, historically an approach which applied discount to all injuries going into the pot, is difficult to follow when one of the injuries now ‘in the pot’ is incapable of discount. Moreover, having an ‘unclear’ picture on how to undertake the discounting exercise must impact on the initial value assessment, as can be seen from Briggs v Laditan.

Arguments about what element of PSLA stems from each injury and so their initial value, and then the extent of the deduction for overlap are likely to persist.

Perhaps of even great concern is that by not revisiting DJ Hennessey’s initial valuation of the non-tariff injury in Briggs v Laditan and effecting the reduction in award she was looking to achieve, this decision suggests a conclusion that starting with ‘full JCG valuation’ for the non-tariff injury should be routine. That is troublesome. All injuries are assessed on a scale which goes ‘up to’ the JCG maximum relative to prognosis. Deciding where on that scale any given injury falls is important and should not be overlooked.

A decision that was hoped would make practitioners’ lives easier seems to have fallen wide of the mark. If the outcome is higher awards due to the number and extent of non-tariff injuries, will that lead to a re-opening of the market? Time will tell, but it certainly seems that the judicial answer which the whiplash reforms indicated would resolve the issue around valuation has yet to be properly provided.