ILC ARTICLE

Supreme Court rules in landmark cases 


A Supreme Court ruling in two motor injury claims cases settles on the status quo option for whiplash cases, with the early consensus being that neither insurers nor the claimant sector has won a significant victory. 

The Rabot and Briggs cases both involved damages claimed for pain, suffering and loss of amenity (PLSA) caused by both whiplash injuries (WLI) and non-whiplash injuries (NWLI) sustained in non-fault motor accidents. 

In the Rabot case, the District Judge awarded £1,390 compensation for WLI and £2,500 for NWLI, resulting in a total tariff of £3,890. However, he ruled that some of the injuries overlapped and reduced the settlement to £3,100. 

In the Briggs case, the sums awarded were £840 and £3,000, with the total payout of £3,840 then reduced to £2,800. 

Both verdicts were appealed at the Court of Appeal, and when those appeals were rejected they were taken to the Supreme Court, which has also now ruled in favour of the original verdict. 

Lord Burrows ruled, “Where a claimant seeks damages for a WLI and NWLI, a judge should assess the tariff amount for the WLI, assess the common law damages for the NWLI, add these amounts together, and then step back and consider whether an adjustment to the total to avoid over- or under-compensation for concurrently caused PSLA is appropriate.” 

Responding to the decision, Matthew Maxwell Scott, Executive Director of the Association of Consumer Support Organisations (ACSO), said, “This looks the right call, and is a sensible middle ground which protects consumers both as injured parties and as policyholders.  

“It’s good news that the wheels of justice have moved quickly here. With the judgment affecting hundreds of thousands of people each year, the huge backlog of cases can now start to be cleared and people get the compensation they are due. Moreover, insurers will be able to reserve more accurately and use this to bring average premiums down from their record highs.” 

Meanwhile, Chris Birkett, Winn Group Chief Executive, added, “The judgment is a pragmatic outcome which clarifies that additional injuries suffered in an RTA deserve additional compensation.  We hope this will be swiftly followed by the insurers settling hundreds of thousands of mixed injury claims that have been stuck in the OIC portal. It was important to establish the principles governing mixed injury compensation, and we are grateful to the Supreme Court for this early and welcome decision.”  

The news was also welcomed by Simon Bradshaw, Head of Personal Injury at Verisk. 

He said, “We are grateful to the Supreme Court for this speedy judgment, which gives a clear steer on how to assess and compensate claimants who are seeking redress for a whiplash plus other injuries sustained in a motor accident.  

“The number of mixed injury claims has been increasing year on year and fast approaching 2019 pre-pandemic levels. On the back of the recent 22% increase in the JCG update, the total compensation levels for mixed injury soft tissue claims are likely to increase beyond pre-reform levels and, in the absence of a relative increase to the Small Claims Limit, the recent rise in OIC claims moving to the MOJ portal will continue apace, leading to increased delays and handling costs. 

“We look forward to supporting the industry to focus attention on progressing thousands of mixed injury claims that are currently held up in the OIC portal, pending the Supreme Court outcome, through to settlement.” 

However, DAC Beachcroft, which represented the defendants in both appeals, has raised doubts as to whether this will be the final word and suggested that Parliament may yet decide to intervene. 

It said, “It remains to be seen whether Parliament will accept the Supreme Court’s interpretation of the 2018 Act as striking the proportionate and reasonable balance, or whether it will want to prevent the benefits of the whiplash reforms from being eroded through claims for multiple injuries. Parliament may want the final word on mixed injuries.” 

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