Charlotte Victoria Hassam v Yoann Samuel Rabot
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies,Lord Justice Stuart-Smith |
| Judgment Date | 20 January 2023 |
| Neutral Citation | [2023] EWCA Civ 19 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001805; CA-2022-001806; CA-2022-001915 |
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and
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[2023] EWCA Civ 19
THE MASTER OF THE ROLLS
Lady Justice Nicola Davies
and
Lord Justice Stuart-Smith
Case No: CA-2022-001805; CA-2022-001806; CA-2022-001915
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT BIRKENHEAD
DISTRICT JUDGE HENNESSY
Claim No: J10Y826 (Rabot)
Claim No: J10YJ855 (Briggs)
Royal Courts of Justice
Strand, London, WC2A 2LL
Darryl Allen KC (instructed by DAC Beachcroft) for the Appellants
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
Approved Judgment
This judgment was handed down remotely at 10.00am on 20 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
These appeals have been accepted by the Court of Appeal from the County Court in Birkenhead because they raise an important question as to the construction of section 3 of the Civil Liability Act 2018 (“the 2018 Act”). The question raised is: 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?
The appeal and cross appeal in Rabot v Hassam (“ Rabot”) and the appeal and cross appeal in Briggs v Laditan (“ Briggs”) concern claims which arise out of a road traffic accident (“RTA”) as a result of which each claimant suffered whiplash and other injuries.
The whiplash injury reforms
The Explanatory Notes to the 2018 Act identify the purpose of the legislation as being “…to reform the claims process for road traffic accident related whiplash injuries, and to make changes to the way in which the personal injury discount rate … is set.”
The mischief at which the legislation was directed is identified in the Explanatory Notes namely:
“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
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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.”
The Explanatory Memorandum to the 2021 Regulations is to like effect namely the focus upon a whiplash injury or injuries and states:
“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…”
The heading to the 2018 Act states: “An Act to make provision about whiplash claims…”.
The determination by a court of damages for PSLA in such cases is governed by section 3 of the 2018 Act. The relevant provisions include:
“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……”
The 2018 Act recognises that there will be cases in which an assessment of damages for PSLA reflecting the combined effect of injuries in cases of tariff and non-tariff (mixed injury cases) will be carried out. Section 3(8) of the Act provides:
“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.
The amounts payable in respect of a whiplash injury and a whiplash injury with minor psychological injury are set out in the Regulations. The figures prescribed by the Regulations are substantially lower than the PSLA awards made by the courts following a common law assessment which takes account of the guidance provided by the Judicial College for the quantification of damages for such injuries. The figures are contained in Regulation 2:
“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.
Scope for a court to order a higher figure is limited: the court must be satisfied that the severity of the whiplash injury is “ exceptionally severe” or that the claimant's individual circumstances (resulting in increased PSLA) are “ exceptional” (regulation 3.2(b)). If the exceptionality test is satisfied the court must also be satisfied that it is appropriate to apply an uplift (regulation 3(2)(a)). The court cannot increase the tariff award by more than 20% (regulation 3(3)). Those provisions apply to any award made under the tariff in mixed injury cases (regulation 3(1)).
The valuation of non-tariff injuries – common law principles
As a general rule, the quantification of damages for PSLA is governed by the common law of England and Wales; Attorney General of St Helena v AB [2020] UKPC 1 Lord Briggs at [16]. Lord Briggs, recognising the principle of restitution as being at the core of an award of PSLA damages at [22] stated:
“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...
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