Rob Weir KC and Sam Way in whiplash injury test case

In Rabot v Briggs; Hassam v Laditan; APIL & MASS intervening [2023] EWCA Civ 19, the Court of Appeal (Sir Geoffrey Vos MR, Nicola Davies LJ and Stuart-Smith LJ) heard two conjoined appeals, both from decisions of District Judge Hennessey sitting in the County Court at Birkenhead. Each decision concerned a ‘mixed injury claim’, which included both claims for whiplash injuries to which the tariff scheme under the Civil Liability Act 2018 and the Whiplash Injury Regulations 2021 applied and claims for other injuries which fell outside the tariff.

The case is the first appellate authority addressing the valuation of PSLA for mixed injuries; a lacuna in the tariff scheme which expressly was left for the Courts to determine rather than being dealt with in the statutory scheme. It applies to 67.3% of the claims issued though the Official Injury Claim portal.

The majority (Nicola Davies and Stuart-Smith LJJ) held that the Civil Liability Act 2018 was a limited intervention in the common law method and valuation of damages for PSLA. The approach that a court should take in assessing damages for PSLA in a mixed injury claim is therefore to (1) assess the tariff award by reference to the Regulation, (2) assess the award for non-tariff injuries on common law principles, and (3) carry out an overall assessment of the value of the injuries in accordance with the well-known principles of Sadler v Filipiak [2011] EWCA Civ 1728, subject to the caveat that the overall award cannot be lower than the amount that would be awarded for the non-tariff injuries alone.

Sir Geoffrey Vos MR dissented, and would have held that the tariff award compensates a Claimant for all PSLA caused by that injury. The additional award for the non-tariff injury would therefore, on his view, be limited to the additional PSLA caused by that injury which was not also attributable to the tariff injury.

Robert Weir KC and Sam Way acted for the Interveners: the Association of Personal Injury Lawyers and the Motor Accident Solicitors Society.

To read the full judgment, please click here.

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