ILC ARTICLE

Landmark case rules in favour of hybrid claim payouts

24th January 2023

A landmark case has ruled that personal injury claimants can receive compensation for both whiplash and non-whiplash injuries.

The Court of Appeal said it was right for claimants in so called ‘hybrid’ cases to be compensated for both, without one cancelling the other out.

However, it said payouts should reflect any overlap in a loss of amenities although it did not specify how that should be calculated.

The ruling came at Birkenhead County Court, where both the Briggs and Rabat cases involved claimants with injuries subject to the whiplash tariff and injuries that fell outside its remit.

The county court awarded separate damages for both, and this ruling was upheld on appeal, when it was decided that aggregating the two injuries would deprive the victims of full compensation for their other injuries.

Lady Justice Nicola Davies said upholding the defendant’s argument would result in claimants receiving ‘radically’ different compensations for non-whiplash injuries depending on whether a qualifying whiplash injury had been sustained or not, and suggested that in future claimants might not pursue compensation for whiplash if they believed it would reduce payouts for non-tariff injuries.

The judge added that upholding the defendants’ appeal could lead to claimants not pursuing a claim for whiplash as it would reduce any award for compensation for the non-tariff injury, and described such as a situation as ‘untenable’.

A Law Society spokesperson said, “We welcome the findings of the Court of Appeal that damages for pain, suffering and loss of amenity for non-tariff injuries are valued and awarded independently of tariff injuries. It is an important principle of access to justice that injured parties are able to access the full compensation to which they are entitled.

“However, solicitors working in the personal injury space, and their clients, would welcome further guidance about how these damages are to be calculated. Without this certainty, claimants who are suffering from mixed injuries will continue to be unclear about the level of damages they are entitled to and it may take longer for them to seek and access redress.”

The ruling was also welcomed by the Association of Consumer Support Organisations.

Executive Director Matthew Maxwell Scott said, “The absence of judicial direction on how to compensate for mixed injuries in the Official Injury Claim portal has been a serious problem ever since it was launched more than 18 months ago. This judgment and the certainty it creates will therefore come as a relief to many. Looking ahead we urge both claimant and defendant representatives to work together better to improve settlement times and ensure consumers are getting the service they should.”

Meanwhile, Matthew Currie, Chief Legal Officer, Minster Law, said: “Now all mixed injury claims can flow more quickly through the OIC process enabling injured claimants to recover compensation in a more timely manner. The decision also provides some certainty for insurers and means that a potential wave of litigation can be avoided. This should help remove potential pressure on the Court system which has been struggling to cope for a long time.”