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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hassam & Anor v Rabot & Anor [2023] EWCA Civ 19 (20 January 2023) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2023/19.html Cite as: [2023] EWCA Civ 19, [2023] KB 171, [2023] 2 WLR 1040, [2023] WLR(D) 35 |
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ON APPEAL FROM THE COUNTY COURT AT BIRKENHEAD
DISTRICT JUDGE HENNESSY
Claim No: J10Y826 (Rabot)
Claim No: J10YJ855 (Briggs)
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE NICOLA DAVIES
and
LORD JUSTICE STUART-SMITH
____________________
CHARLOTTE VICTORIA HASSAM - and – BOLUWATIFE LADITAN |
Appellants |
|
- AND – |
||
YOANN SAMUEL RABOT - and – MATTHEW DAVID BRIGGS |
Respondents |
|
- AND – |
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THE ASSOCIATION OF PERSONAL INJURY LAWYERS AND THE MOTOR ACCIDENT SOLICITORS SOCIETY |
Interveners |
____________________
Benjamin Williams KC and Shannon Eastwood (instructed by Robert James Solicitors) for the Respondents
Robert Weir KC and Sam Way (instructed by Hugh James Solicitors) for the Interveners
Hearing date : 30 November 2022
____________________
Crown Copyright ©
Lady Justice Nicola Davies :
The whiplash injury reforms
"Policy background
3. In June 2017, the Conservative party formed a Government with a manifesto to "reduce insurance costs for ordinary motorists by tackling the continuing high number and cost of whiplash claims". The Act contains measures that give effect to policies outlined in previous Government consultation responses regarding whiplash injuries arising from road traffic accidents …..
Whiplash
…
7. The continuing high number of whiplash claims increases the cost of motor insurance premiums, paid by motorists in England and Wales. The Government has set out its view that the level of compensation paid to claimants for these claims is also out of proportion to the level of injury suffered, and that it intended to introduce measures to reduce the costs of civil litigation whilst ensuring genuinely injured claimants continue to receive a proportionate amount of compensation. These measures disincentivise minor, exaggerated and fraudulent claims….
…..
Legal Background
….
Whiplash
There are currently no legislative provisions that seek to regulate damages for pain, suffering and loss of amenity for road traffic accident related ("RTA") whiplash injuries. The assessment and award of such damages is a matter for the court by reference to the facts of the case, including the severity of the injuries and previous awards for similar injuries. Guidance on damages is provided in the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases.
…..
Territorial extent and application
….
Part 1
21 The provisions concerning whiplash injuries and damages extend and apply to England and Wales only."
"3.4 … the purpose of this legislation is to address the continued high number and cost of whiplash related personal injury claims (as defined in Part One of the CLA 2018) ….
7.1 … As such, controlling the costs of civil litigation for whiplash claims whilst ensuring proportionate compensation is paid to genuinely injured claimants is a government priority…"
"3 Damages for whiplash injuries
(1) This section applies in relation to the determination by a court of damages for pain, suffering and loss of amenity in a case where—
(a) a person ("the claimant") suffers a whiplash injury because of driver negligence, and
(b) the duration of the whiplash injury or any of the whiplash injuries suffered on that occasion—
(i) does not exceed, or is not likely to exceed, two years, or
(ii) would not have exceeded, or would not be likely to exceed, two years but for the claimant's failure to take reasonable steps to mitigate its effect.
(2) The amount of damages for pain, suffering and loss of amenity payable in respect of the whiplash injury or injuries, taken together, is to be an amount specified in regulations made by the Lord Chancellor.
(3) If the claimant suffers one or more minor psychological injuries on the same occasion as the whiplash injury or injuries, the amount of damages for pain, suffering and loss of amenity payable in respect of the minor psychological injury or the minor psychological injuries, taken together, is to be an amount specified in regulations made by the Lord Chancellor…..."
"Nothing in this section prevents a court, in a case where a person suffers an injury or injuries in addition to an injury or injuries to which regulations under this section apply, awarding an amount of damages for pain, suffering and loss of amenity that reflects the combined effect of the person's injuries (subject to the limits imposed by regulations under this section)."
The Act and the Regulations are silent as to how the courts are to assess damages in these mixed injury cases.
"2.— Damages for whiplash injuries
"(1) Subject to regulation 3—
(a) the total amount of damages for pain, suffering and loss of amenity payable in relation to one or more whiplash injuries, taken together ("the tariff amount" for the purposes of section 5(7)(a) of the Act), is the figure specified in the second column of the following table; and
(b) the total amount of damages for pain, suffering and loss of amenity payable in relation to both one or more whiplash injuries and one or more minor psychological injuries suffered on the same occasion as the whiplash injury or injuries, taken together ("the tariff amount" for the purposes of section 5(7)(b) of the Act), is the figure specified in the third column of the following table—
Duration of injury | Amount – Regulation 2(1)(a) |
Amount – Regulation 2(1)(b) |
Not more than 3 months | £240 | £260 |
More than 3 months, but not more than 6 months | £495 | £520 |
More than 6 months, but not more than 9 months | £840 | £895 |
More than 9 months, but not more than 12 months | £1,320 | £1,390 |
More than 12 months, but not more than 15 months | £2,040 | £2,125 |
More than 15 months, but not more than 18 months | £3,005 | £3,100 |
More than 18 months, but not more than 24 months | £4,215 | £4,345. |
The valuation of non-tariff injuries – common law principles
"The core function of PSLA damages, like any other type of damages for the commission of a tort, is that identified by Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39:
"where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong …"
In Heil v Rankin [2001] QB 272, after citing that passage, Lord Woolf MR continued, at para 23, as follows:
"23. This principle of 'full compensation' applies to pecuniary and non-pecuniary damage alike. But, as Dickson J indicated in the passage cited from his judgment in Andrews v Grand & Toy Alberta Ltd, 83 DLR (3d) 452, 475-476, this statement immediately raises a problem in a situation where what is in issue is what the appropriate level of 'full compensation' for non pecuniary injury is when the compensation has to be expressed in pecuniary terms. There is no simple formula for converting the pain and suffering, the loss of function, the loss of amenity and disability which an injured person has sustained, into monetary terms. Any process of conversion must be essentially artificial. Lord Pearce expressed it well in H West & Son Ltd v Shephard [1964] AC 326, 364 when he said:
'The court has to perform the difficult and artificial task of converting into monetary damages the physical injury and deprivation and pain and to give judgment for what it considers to be a reasonable sum. It does not look beyond the judgment to the spending of the damages.'"
"It is in my judgment always necessary to stand back from the compilation of individual figures, whether assistance has been derived from comparable cases or from the JSB guideline advice, to consider whether the award for pain, suffering and loss of amenity should be greater than the sum of the parts in order properly to reflect the combined effect of all the injuries upon the injured person's recovering quality of life or, on the contrary, should be smaller than the sum of the parts in order to remove an element of double counting. In some cases, no doubt a minority, no adjustment will be necessary because the total will properly reflect the overall pain, suffering and loss of amenity endured. In others, and probably the majority, an adjustment and occasionally a significant adjustment may be necessary."
The facts of Rabot and Briggs
Briggs
(a) determine what each injury is;
(b) value each injury in accordance with whatever scheme/regime is appropriate;
(c) add them and then step back exercising the type of judicial discretion that judges have been doing over many years;
(d) reach a final figure by making an appropriate deduction (if any).
Grounds of appeal
(i) A tariff award should be made for the whiplash injury and a conventional common law general damages award for the other injuries. The two awards should then be aggregated. This is the claimants' primary case on appeal;
(ii) A tariff award should be made for the whiplash injury and a conventional common law general damages award for each of the other injuries but in addition the court should apply a "totality" principle and discount the overall award to allow for any overlap between the PSLA, common both to the whiplash and non whiplash injuries. The discounting process should only be completed when the appropriate awards for the tariff and non-tariff injuries have been combined. This is the claimants' secondary case and the approach adopted by the Judge. It is accepted by the claimants that no reduction can be made to the tariff award;
(iii) The tariff award is the starting point. All PSLA common to (i.e. concurrently caused by) both the tariff and non-tariff injuries is to be treated as fully compensated for by the tariff award. Thus only a further small amount would be appropriate for any additional PSLA, if any can be exclusively attributed to the other injuries as being solely caused by them. This is the defendants' approach;
(iv) Pursuant to section 3(8) when the court is making an assessment of the non-scheme injury, it must make an award of PSLA which "reflects the combined effect" of the tariff and non-tariff injuries. The non-tariff award should reflect and include the totality of any overlap between the PSLA, common both to the whiplash and non whiplash injuries. This is the approach of the interveners.
Claimants' cross-appeals
Rabot
Briggs
Discussion
(a) Parliament is taken to have known what the law was prior to the enactment, including the principle of full compensation and the Judicial College Guidelines provided as to the quantification of the PSLA at common law;
(b) there is a presumption that a statute (in this case the 2018 Act) does not alter the common law unless it so provides, either expressly or by necessary implication;
(c) there is a presumption that Parliament has not altered the common law further than was necessary.
(i) assess the tariff award by reference to the Regulations;
(ii) assess the award for non-tariff injuries on common law principles; and
(iii) "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.
Lord Justice Stuart-Smith :
The Master of the Rolls:
Introduction
It is … always necessary to stand back from the compilation of individual figures, whether assistance has been derived from comparable cases or from the [Judicial College] guideline advice, to consider whether the award for pain, suffering and loss of amenity should be greater than the sum of the parts in order properly to reflect the combined effect of all the injuries upon the injured person's recovering quality of life or, on the contrary, should be smaller than the sum of the parts in order to remove an element of double counting. In some cases, no doubt a minority, no adjustment will be necessary because the total will properly reflect the overall pain, suffering and loss of amenity endured. In others, and probably the majority, an adjustment and occasionally a significant adjustment may be necessary.
The statutory provisions
Damages for whiplash injuries
(1) This section applies in relation to the determination by a court of damages for pain, suffering and loss of amenity in a case where—
(a) a person ("the claimant") suffers a whiplash injury because of driver negligence, and
(b) the duration of the whiplash injury or any of the whiplash injuries suffered on that occasion—
(i) does not exceed, or is not likely to exceed, two years, or
(ii) would not have exceeded, or would not be likely to exceed, two years but for the claimant's failure to take reasonable steps to mitigate its effect.
(2) The amount of damages for pain, suffering and loss of amenity payable in respect of the whiplash injury or injuries, taken together, is to be an amount specified in regulations made by the Lord Chancellor. …
(8) Nothing in this section prevents a court, in a case where a person suffers an injury or injuries in addition to an injury or injuries to which regulations under this section apply, awarding an amount of damages for pain, suffering and loss of amenity that reflects the combined effect of the person's injuries (subject to the limits imposed by regulations under this section).
(9) Nothing in this section prevents the amount of damages payable being reduced by virtue of section 1 of the Law Reform (Contributory Negligence) Act 1945.
2.—(1) Subject to regulation 3 —
(a) the total amount of damages for pain, suffering and loss of amenity payable in relation to one or more whiplash injuries, taken together ("the tariff amount" for the purposes of section 5(7)(a) of the Act), is the figure specified in the second column of the following table; and
(b) the total amount of damages for pain, suffering and loss of amenity payable in relation to both one or more whiplash injuries and one or more minor psychological injuries suffered on the same occasion as the whiplash injury or injuries, taken together ("the tariff amount" for the purposes of section 5(7)(b) of the Act), is the figure specified in the third column of the following table—
Duration of injury | Amount – Regulation 2(1)(a) | Amount – Regulation 2(1)(b) |
Not more than 3 months | £240 | £260 |
More than 3 months, but not more than 6 months | £495 | £520 |
More than 6 months, but not more than 9 months | £840 | £895 |
More than 9 months, but not more than 12 months | £1,320 | £1,390 |
More than 12 months, but not more than 15 months | £2,040 | £2,125 |
More than 15 months, but not more than 18 months | £3,005 | £3,100 |
More than 18 months, but not more than 24 months | £4,215 | £4,345 |
Discussion