Pump Court Chambers

Mixed Injuries post Whiplash Reforms – Where are we now?

Blog 2nd February 2023

The much awaited judgment in the mixed injury test cases of Rabot v Hassam and Briggs v Laditan [2023] EWCA Civ 19 was handed down by the Court of Appeal on 20 January 2023. However, the divided judgment in these leap frog appeals is likely to raise as many questions as it answers and will be considered a blow to the insurance industry and the overall impact of the whiplash reforms.

The ultimate issue was how the court should approach the assessment of damages in a case where the injuries sustained include:

  1. an injury to which the Civil Liability Act 2018 (‘the Act’) applies[1], (‘a tariff injury’), and
  2. an injury to which the Act does not apply (‘a non-tariff injury’).

Or, as Lady Justice Nicola Davies expressed it, ‘how is the court to assess damages for pain, suffering and loss of amenity (“PSLA”) where the claimant suffers a whiplash injury which comes within the scope of the 2018 Act and attracts a tariff award stipulated by the Whiplash Injury Regulations 2021 (“the Regulations”), but also suffers additional injury which falls outside the scope of the 2018 Act and does not attract a tariff award?[2]

The Court of Appeal was split 2 to 1 on this decision with Davies LJ and Stuart-Smith LJ providing the majority judgment and the Master of the Rolls, Sir Geoffrey Vos, dissenting.

Ultimately, the decision is one of statutory interpretation; requiring the court to consider the purpose of the whiplash reforms and the intention of Parliament in legislating as it has.

The Guidance

The guidance provided by Davies LJ and Stuart-Smith LJ when assessing damages in mixed injury cases, where one of the injuries is a tariff injury, is that the court should take the following three steps:

  1. Assess the tariff injury by reference to the Whiplash Injury Regulations 2018 (‘the Regulations’);
  2. Assess the award for non-tariff injuries using the usual common law principles;
  3. Then ‘step back’ from the award and discount the award to avoid for over-compensation where the loss of amenity arising from each injury overlaps.[3]

There is one final caveat to this guidance; the final award arrived at after those three steps cannot be less than the full non-tariff sum.

For example, in Rabot, the court at first instance awarded £1,390 for the tariff injury and £2,500 for the non-tariff injury, providing a total of £3,890. The court then ‘stepped back’ and deducted £790 to account for the overlap between the injuries. The final award was therefore £3,100 which was upheld by the Court of Appeal. In this case, the deduction could not have been more than £1,391 as that would have reduced the total award to less than the amount for the non-tariff injury (i.e. £3,890 – £1,391 = £2,499 which is less than £2,500).

Whereas, in Briggs, the judge awarded £840 for the tariff injury and £3,000 for the non-tariff injury, giving a combined sum of £3,840. The judge discounted the total to £2,800 to account for the overlap and reasoned in doing so that ‘there was no loss of amenity attributable to the knee, elbow, chest and hip injuries alone[4]. This reduction brought the total award to lower than the amount awarded for the non-tariff injury and the Court of Appeal therefore viewed that adjustment was too great. The Court of Appeal adjusted the award and reduced the total by £340, providing a final award of £3,500, which does not fall foul of the caveat set out above.[5]

The Competing Arguments

The grounds of appeal presented alternative methods as to how the court should approach the assessment of damages in mixed injury cases. The parties argued as follows:

The Claimants

  • The claimants’ primary submission was that the relevant tariff award should be made for the whiplash injury and conventional common law general damages for the other injuries. Those two sums should then be aggregated.
  • Their secondary approach was that a tariff award should be made for the whiplash injury and conventional common law general damages awarded for the other injuries, the court should then apply the ‘totality’ principle and discount the award to allow for any overlap. The claimants accepted that no reduction should be made to the tariff award.

The Defendants

  • The defendants’ position was that the non-tariff injuries should be treated as fully compensated for by the tariff award and therefore only a further small amount would be appropriate if any additional PSLA could be exclusively attributed to non-tariff injuries sustained.

The Interveners (The Association of Personal Injury Lawyers and The Motor Accident Solicitors Society)

  • The interveners’ approach was that, under s3(8) of the Act, the court must make an award of PSLA which reflected the combined effect of the tariff and non-tariff injuries and the non-tariff award should reflect and include the totality of any overlap.

The Decision

The Majority Decision

The Court considered the policy background behind the whiplash reforms with Davies LJ referring to the Explanatory Notes relating to the Act[6]. In essence, the aim of the reforms was to disincentivise minor, exaggerated and fraudulent claims. The Government considered that such claims arose out of the disproportionate compensation which was awarded for the level of injury suffered. The ultimate hope was that the reforms would reduce insurance costs for ordinary motorists.

S3(8) of the Act specifically addresses mixed injury cases and states that the court is not prevented from ‘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 court has the power under regulation 3(2)(b) to award a higher figure if the severity of the injury is ‘exceptionally severe’ or the claimant’s individual circumstances are ‘exceptional’ in that they result in increased pain, suffering and loss of amenity.

Cases where minor psychological injuries are suffered alongside whiplash injuries are also specifically dealt with under regulation 2, with reference to the duration of the injury.

Davies LJ turned her mind to the nature and purpose of PSLA damages, quoting Lord Briggs in Attorney General of St Helena v AB [2020] UKPC 1 who stated that the damages should reflect ‘what society as a whole considers to be fair and reasonable compensation for the victim’[7]. She also adopted the well-known principle of ‘standing back’ from an award taken from Sadler v Filipiak [2011] EWCA Civ 1728.

Davies LJ concluded that there was ‘nothing in the wording of the statute or in the extra Parliamentary material which suggests, let alone demonstrates, an intention to alter the common law process of assessment for, or the value of, non-tariff injuries’. She considered that Parliament’s intention was confined ‘exclusively’ to whiplash injuries and relied on the presumption set out in Lachaux v Independent Print Ltd [2020] AC 612 that a statute does not alter the common law unless it so provides, either expressly or by necessary implication[8].

She noted that the words of s3(8) of the Act replicate the expression from Sadler, that it is necessary to stand back from the aggregate amount of the individual figures and consider if the total award should be greater than the sum of the parts. In addition, any chance of a claimant receiving ‘windfall damages’ was negated by the fact that the value of any tariff injury had been ‘significantly depressed’[9].

Considering the impact of the approach taken by the defendants, Davies LJ noted that it would have the effect of claimants being compensated in ‘radically different amounts’ for non-whiplash injuries depending on whether or not they also sustained a whiplash injury.

Stuart-Smith LJ agreed with her decision and used his judgment to criticise the approach of the Master of the Rolls.

The Dissenting Judgment

The Master of the Rolls placed emphasis on the use of the word ‘case’ rather than ‘claim’ in s3(1) of the Act (‘in a case where… a person … suffers a whiplash injury’). He also relied heavily on the presence of s3(8) as ensuring that proper compensation was payable where the loss of amenity caused by the non-tariff injury is over and above that caused by the tariff injury.

Lastly, he argued that the ‘stand back’ approach did not apply because it is only relevant to cases where the claimant is receiving 100% compensation for each injury and the effect of the legislation was to reduce damages to below 100% for tariff injuries.

Comment and Conclusion

Ultimately, this decision will mean a number of cases entered onto the portal, which were on hold pending this guidance, are now able to progress towards settlement or determination.

The point raised by Davies LJ in respect of the defendants’ approach is a powerful one. It seems highly unlikely that, in attempting to reduce the insurance costs for the majority of drivers by reducing the number and value of whiplash claims, Parliament also intended that the compensation received for, in the case of Rabot, a knee injury, would vary depending on whether the claimant had also sustained a tariff injury. That does not appear to be an approach which would result in claimants receiving compensation which ‘society as a whole considers to be fair and reasonable’.

However, the majority decision is a blow to insurers who would have hoped that the reforms would limit recovery in these cases to the tariff amount. Such a limitation on recovery of damages would have undoubtedly reduced the number of fraudulent claims brought. But, taking the majority approach, those claimants in whiplash cases who claim for non-tariff injuries will be able to ‘top up’ the non-tariff amount. Most strikingly, this is true even when the non-tariff injury resolves before the tariff injury and is not responsible for any additional loss of amenity (as was the case in Briggs). The assessment of the amount of ‘over-compensation’ is likely to be difficult in such situations and settlement may therefore prove elusive.

It remains to be seen if there will now be an avalanche of whiplash cases in which claimants will also claim to have suffered a non-tariff injury. In those circumstances, insurers may well be asking how far the reforms have gone in disincentivising fraudulent or exaggerated claims and reducing the cost of insurance to ordinary policy holders.

[1] Under s3(1), the act applies 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

[2] Paragraph 1

[3] Paragraph 38

[4] Paragraph 55

[5] Paragraph 41

[6] https://www.legislation.gov.uk/ukpga/2018/29/notes

[7] Paragraph 23, Attorney General of St Helena v AB [2020] UKPC 1

[8] Lord Sumption at paragraph 13,

[9] Paragraph 37


By Rebekah Batt. For further information about Rebekah’s practice, or any other members of our Personal Injury team, please contact Tony Atkins, Senior Clerk or Jonathan Cue, Senior Civil Clerk on 020 7353 0711 or via email: clerks@pumpcourtchambers.com.

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