By: 20 January 2023
Court of Appeal issues ruling in mixed injury test cases

The Court of Appeal has handed down its highly anticipated judgement in the whiplash mixed injury test cases, finding that the pain, suffering and loss of amenity aspect of compensation in non-tariff disputes must be assessed on common law principles.

The Association Personal Injury Lawyers (APIL) welcomed aspects of the decision, after intervening with the Motor Accidents Solicitors Society (MASS). The two expedited conjoined mixed injury appeals from Birkenhead County Court were heard last month.

Brett Dixon, secretary of APIL, said: “We welcome the fact that the court confirmed the crucial point of principle that full damages must be paid for non-tariff injuries.

“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.”

New compensation tariffs were introduced for whiplash cases last year, but the reforms did not address the way damages should be calculated in cases where other injuries that are not subject to a tariff are combined.

To address this, two groups representing claimants and defendants were brought together and facilitated by the Motor Insurers Bureau to create a framework for bringing a basket of test cases direct to the Court of Appeal.

They aimed to resolve the mixed injury issue to ensure injured people are compensated properly. APIL and MASS intervened on behalf of the claimant group.

‘Risks under-compensating victims of negligence’

The Court of Appeal also upheld the Birkenhead court’s approach in its finding that a deduction should be made in cases of mixed injury to avoid any risk of over-compensation.

Dixon explained: “[A]llowing any deduction of damages in mixed injury cases is not welcome as it risks under-compensating 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.”

Nick Kelsall, head of motor claims at Allianz Commercial, was unimpressed with the Court of Appeal’s judgement, saying: “When the whiplash reforms were introduced, they set limits to compensate claimants for their genuine injuries, with the aim to deter fraudulent or exaggerated claims.

“However, our data shows that since whiplash compensation has been capped, we’ve received more claims for mixed injuries, which would suggest that some are gaming the system to inflate their payout.

“Motor insurers have always tried to keep claims costs down as a way to keep premiums down. That is also what the government had set out to achieve with the whiplash reforms, and in our view it remains the right approach, especially at a time of such high inflation.

“We will monitor the impact of this ruling, but we are sure we will now see further ‘gaming’ that will in effect eradicate the benefits from the whiplash reforms if this is where it ends.”

‘More appeals are a strong possibility’

Ian Davies, partner and head of motor at law firm Kennedys, believes further appeals are a “strong possibility”.

He said: “Today’s judgement provides some clarity on the approach to be adopted. Perhaps unsurprisingly it confirms the approach in the 2011 Court of Appeal ruling in Sadler v Filipiak.

“With the comments of Davies LJ providing encouragement to the claimant market and the dissenting judgement of Voss MR ensuring the defendant has more than a little hope going forward, the focus will turn back to the detail of each medical report and the case presented on an individual basis. More appeals are a strong possibility.”

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