Mixed injury claims clarification at last

Executive summary

The Supreme Court has now provided the definitive response to the vexed issue of the assessment of damages for pain, suffering and loss of amenity where a claimant has sustained  both a whiplash injury which comes within the scope of the Civil Liability Act 2018 and therefore attracts a fixed "tariff award"; as well as a non-whiplash injury which does not attract a tariff award. The court essentially endorsed the approach taken by the Court of Appeal which had followed the previously accepted practice on the assessment of damages in cases involving multiple injuries.

Background

We wrote about this case following the Court of Appeal decision back in January 2023.

The first instance decisions arose from Birkenhead County Court where it was held that the proper approach was to: (a) determine the nature of each injury; (b) assess the compensation for each injury in accordance with the appropriate regime (the tariff award for the whiplash injury and the common law for the non-whiplash injury; (c) add these values together and then step back to assess whether the total amount would over- or under-compensate the claimant for the total PSLA that they suffered; and (d) if appropriate, make an adjustment to the total to avoid any such over- or under-compensation. This has been the standard approach at common law to assessing damages for PSLA for multiple injuries (whether involving whiplash or not) as articulated by the Court of Appeal in Sadler v Filipiak [2011] EWCA Civ 1728 (“Sadler”).

The two cases were then the subject of leapfrog appeals to the Court of Appeal. The defendants argued that any PSLA caused by both whiplash and non-whiplash injuries was already compensated for in the tariff amount, so that only PSLA caused exclusively by the non-whiplash injury could be compensated for in addition to that tariff amount. The claimants cross-appealed, arguing that the tariff amount and the PSLA damages for the non-whiplash injury should simply be added together, without any reduction for overlap or double recovery.

The majority in the Court of Appeal backed valuing both injuries separately in accordance with whatever scheme or tariff applied, and then reducing the total for any element of overlap of the non-tariff element with that already compensated for within the tariff for pain, suffering and loss of amenity, following Sadler.

The Supreme Court’s decision

The Supreme Court dismissed both the appeals and the cross appeals, confirming that the majority approach in the Court of Appeal (and essentially that taken by the district judge at first instance) had been correct.

Accordingly, the correct approach to be adopted where a claimant is seeking damages for PSLA in respect of both whiplash injuries and non-whiplash injuries is:

1. Assess the tariff amount according to the table in the Whiplash Injury Regulations 2021
2. Assess the common law damages for PSLA for the non-whiplash injuries
3. Add those two amounts together
4. Step back and consider whether any adjustment is needed, applying Sadler. The adjustment (which the court said in this context will almost always be a deduction rather than an addition) must reflect, albeit in a rough and ready way, the need to avoid double recovery for the same PSLA. The court must respect the fact that the legislation has laid down a tariff amount for the whiplash injuries that is not aiming for full compensation: in that respect, the Sadler adjustment is a slightly different exercise than if one were dealing entirely with the common law assessment of damages for multiple injuries
5. If it is decided that a deduction is needed, that must be made from the common law damages because the tariff amount is a statutory fixed sum
6. However, and this is what Nicola Davies LJ in the Court of Appeal described as the “caveat”, the final award cannot be lower than would have been awarded as common law damages for PSLA for the non-whiplash injuries had the claim been only for those injuries.

Conclusions and implications

Whilst the Supreme Court’s decision may not be entirely surprising in view of its endorsement of the approach previously taken in multiple injury claims by the Court of Appeal in Sadler, it may nevertheless be disappointing for insurers as it seems likely that more cases involving both a whiplash and non-whiplash injury will drop out of the Official Injury Claims (OIC) online portal.

Compensators will also be mindful of the fact that the tariff figures themselves for whiplash injuries are being reviewed, whilst the latest issue of the Judicial College Guidelines, the essential reference guide for assessing PSLA in non-whiplash injuries, has reflected the recent significant increases in the cost of living with average increases in damages levels of 22% - for more on this, read our insight here.

It is worth noting that the approach that we now know needs to be taken in cases involving both a tariff award and a non-tariff assessment of damages makes it seemingly inevitable that we will continue to see many claims arising out of road traffic collisions involving multiple injuries.

Going forward, insurers will need to ensure an accurate overall assessment of the correct amount of PSLA compensation which is appropriate to reflect the injuries sustained, applying the approved approach. The effect that the endorsed approach has on the number of claims which remain in the OIC portal should also be tracked so as to see whether the impact of the judgment weakens the attempts to control what may have been seen as a proliferation of whiplash claims. If such evidence does emerge, it would of course be a matter for Parliament to intervene with suitable legislative amendments.