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Mixed Injury Cases and the Civil Liability Act 2018: Hassam v Rabot [2023] EWCA Civ 19 - Sebastian Bates, Temple Garden Chambers

23/02/23.As a general rule, the quantification of damages for [pain, suffering, and loss of amenity, or PSLA] is governed by the common law’: see [11] of Nicola Davies LJ’s judgment in this case. However, as she recognised at [25], the Civil Liability Act 2018 and the Whiplash Regulations 2021 represent a statutory incursion into the common law method of assessing damages and a radical departure from the common law approach to such an assessment in that they abandon the “fair and reasonable” approach to the assessment of whiplash injuries and minor psychological injuries in cases falling within the scope of the legislation’. Instead, as she explained at [7]–[10], awards for these injuries are made according to a tariff. While the legislative scheme ‘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’, it is ‘silent as to how the courts are to assess damages’ in such cases.


Nicola Davies LJ considered (at [26]) that ‘[t]he mischief at which the legislation is directed is minor whiplash claims resulting from a motor vehicle accident’ and ‘[t]here is 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 reasoned (at [27]) that ‘Parliament has chosen to legislate into the area of the common law of England and Wales but having done so, and in the absence of any clear indication to the contrary, it is presumed not to have altered the common law further than was necessary in order to remedy the mischief which was the focus of the 2018 Act’.

She thus took the view (at [33]–[38]) that, in a mixed injury case, a ‘court is required to carry out two separate assessments’: the assessment of a tariff award and the assessment of an ‘award for non-tariff injuries on common law principles’. The court is then to ‘step back’ and adjust for any overcompensation, ‘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’ and with the ‘caveat’ 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’.

Conclusion and Comment

Stuart-Smith LJ agreed with Nicola Davies LJ. Her judgment therefore lays down the principles that will govern in mixed injury cases for the time being.

However, Vos MR gave a dissenting judgment (to which Stuart-Smith LJ responded in a short judgment of his own). It may be that the Supreme Court—or indeed Parliament—will assess these principles in due course.

UPDATE: The Association of British Insurers (ABI) has now announced that it has sought permission to appeal the rulings in Briggs and Rabot that were handed down last month by the Court of Appeal.

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