Lawyers have expressed disappointment after the Court of Appeal failed to provide clarity about how compensation should be calculated in cases when whiplash is combined with other injuries, in a judgment handed down this morning (20 January).
“We welcome the fact that the Court confirmed the crucial point of principle that full damages must be paid for non-tariff injuries,” said Brett Dixon, secretary of the Association of Personal Injury Lawyers (APIL) which intervened in the appeal, along with the Motor Accidents Solicitors Society (MASS).
“The principle of full compensation takes precedence when identifying any overlap in the two types of damages, and this addresses the serious risk of under-compensation.
“But allowing any deduction of damages in mixed injury cases is not welcome as it risks undercompensating victims of negligence when they are already subject to reduced damages because of the whiplash tariff, which we have always argued is grossly unfair.
“And the fact that the Court failed to set out how the level of deduction should be established will subject injured people to more uncertainty until further case law establishes exactly how that should be calculated in these cases.”
APIL and MASS were granted permission to intervene in two expedited conjoined appeals from Birkenhead County Court which were heard last month. The aim was to address a problem caused by legislation which failed to address the way damages for pain and suffering should be calculated in ‘mixed injury’ cases where whiplash injuries, which are subject to a ‘tariff’, are combined with other injuries sustained as a result of the same incident but which are not subject to a tariff.
The intervention was made on behalf of a wider group facilitated by the Motor Insurers Bureau. In their submission, APIL and MASS argued that damages for tariff and non-tariff injuries should be added together on the basis that Parliament’s original intention when passing the Civil Liability Act was that the legislation would only alter the way whiplash damages were to be calculated. Any overlap between whiplash injuries and other injuries was a matter for the courts to address, based on common law principles
The Court of Appeal confirmed a critical point of principle that the pain, suffering and loss of amenity aspect of compensation in non-tariff cases must be assessed on common law principles.
But it also upheld the Birkenhead court’s approach in its finding that a deduction should be made in mixed injury cases to avoid any risk of over-compensation. Crucially, the Court of Appeal did not set out how that deduction will be made.