Defendant lawyers have urged the Court of Appeal not to risk double compensation for injuries caused by the same accident.

In the eagerly-awaited Rabot v Hassam case, heard by three judges including the master of the rolls, counsel for the defendant said the claimant was effectively being compensated twice for the same harm if they were awarded separate damages for whiplash and non-whiplash injuries.

The dispute comes about because in the new RTA claims portal, launched in May 2021, only whiplash injuries are subject to a fixed tariff as set out in the Civil Liability Act. The legislation did not explicitly advise how to compensate for other bodily injuries claimed for in addition. Instead the government said it expects the court to resolve whether to apply any discount to damages awarded for non-tariff injuries.

Rabot is joined with Briggs v Laditan: both are personal injury claims which were heard in Birkenhead County Court by District Judge Hennessy and leapfrogged to the Court of Appeal. In Rabot, the tariff amount was £1,390 and the judge awarded an additional £2,500 for the non-tariff injuries – specifically injury to the knee.

The total was then reduced to £3,100 ‘to recognise the clear overlap on the basis of the medical evidence’.

The consequences of the court’s ruling are significant, with 24,000 so-called mixed claims filed every month with Official Injury Claim, amounting to two-thirds of the total.

Darryl Allen KC, for Hassam, said the issue was that the consequences of the whiplash and knee injuries on the claimant’s pain, suffering and loss of amenity were concurrent so therefore should not be compensated separately. It was advanced that the tariff amount should be the starting point for damages.

‘The common law assessment has to follow from the fact that the effects of the injury are compensated in full by the tariff,’ he said. ‘It [the judge’s ruling] leads to over-compensation. The bulk of the pain, suffering and loss of amenity is attributable and compensated by the whiplash injury and tariff award.’

Allen said the extra impact of the knee injury was ‘minimal’ and should be subject to only a modest allowance. He added that ‘it might be said that the whiplash reforms in themselves have created a new industry in knee claims’.

Lord Justice Stuart-Smith raised the possibility that claimants might be encouraged not to mention whiplash if a mixed claim is going to water down the larger amount they would expect to receive for a knee claim. This seemed ‘counter-intuitive and probably undesirable’, he noted.

Benjamin Williams KC, for the claimant, said it was wrong to regard the double award as an uplift and described the judge’s original ruling as ‘rational’. He added: ‘The pain and suffering is distinct. It is different having pain in your knee and in your neck.’

The Association of Personal Injury Lawyers and Motor Accident Solicitors Society, which jointly intervened, said the tariff provisions in the Civil Liability Act specifically apply only to whiplash injuries, and parliament did not intend to reduce the damages payable for other injuries.

‘Such damages are assessed separately according to common law principles,’ said Robert Weir KC, for the intervenors. ‘Parliament did not alter the common law further than was necessary.’

Judgment was reserved.

 

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