On the 31st May 2021, the landscape for claims involving whiplash injuries changed, and claims involving Road Traffic accidents had to be submitted via the Official Injury Claim Service (OIC). There are a few exceptions which are excluded from this process.
Injuries for whiplash type injuries are governed by a tariff, which was introduced at the same time. The tariff has reduced the amount which can be claimed for whiplash type injuries.
However, how does the court decide how to compensate the claimant who has tariff and non-injuries?
Whiplash injuries are defined by the Civil Liberties Act 2018 s1 (2) (a)
An Injury falls within this subsection it is
(a) A sprain , tear, rupture or lesser damage to a muscle, tendon or ligament in the neck, back or shoulder or
(b) An injury of soft tissue associated with a muscle, tendon or ligament in the neck, back or shoulder
How does the court decide to compensate the claimant for non-tariff injuries?
The County Court Birkenhead recently considered this point and District Judge Hennessy handed down the following decisions:
Mason v Pickering, which was the first case go before the court.
The Defendant won as expected given the evidence before the court. Clearly, this was because the tick box medical evidence was lacking definition/clarity. See specifically:
- Paragraph 22: Judge confirms big question is does the arm fall under s.1 (2) or s.1 (3) of the Act
- Paragraph 24 and 25: Judge confirms due to tick box report the evidence is silent in detail, inference is required and quite simply the Court “cannot fill the evidential gap”. Supports the fact the burden of proof is on the Claimant
- At paragraph 29, the Learned Judge considers “if” she had found a non-tariff injury occurred, then she will value the injuries separate (e.g. tariff and common law) and then reduces for “totality”.
When the matter of Rabot v Hassam came before the court, the issues raised in Mason were different, to this matter. Again, this was heard by District Judge Hennessy, and in her judgment she confirmed, in her decision, is how a claim for tariff and non-tariff injuries should be determined when assessing damages – see paragraphs 33 and 34 of the Judgment.
Since Rabot was handed down, there has been another decision from District Judge Hennessy, in the matter of Briggs v Laditan the Claimant wanted the tariff and non-tariff sums awarded together, without any reduction. The Claimant was arguing tariff and non-tariff are split by Law and Common Law. ‘Sadler’ for “totality” is only linked to common law ‘JCG’ as the tariff is ring fenced.
A strange decision as the Learned Judge maintains her principles set out in ‘Rabot’ of valuing the tariff and non-tariff injuries in isolation, then adopting “totality”?
Included are some decisions from District Judge Gray who is the Senior District Judge at the County Court St. Helens:
- Phillips v IQUW Corporate Member Limited
- Nadeem v EUI Limited
- Turner v EUI Limited
- Rahman v Davies Motor
Khan v Watford Insurance Company Europe Limited
In these matters, the Learned Judge found ‘totality’ in all these cases.
Chris Skyner, author of ‘Mixed and Non-tariff Injuries’ – Case Law’ is Legal Advisor – Claimant at Carpenters Group in Birkenhead.