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Court of Appeal judgment on additional injury cases gives clarity on approach, but not detail

25 January 2023

Over 18 months on from the implementation of the Official Injury Claims portal and associated claims process, we now have the much anticipated decision from the Court of Appeal on how to value claims involving whiplash and an additional injury/injuries. So, what is the outcome and does this give the clarity and guidance that the industry has been seeking? We review the decision, the rationale behind the judgment, and the implications for future claims handling.

Summary of the decision

The decision itself is neatly set out in the court summary as follows:

The majority of the court determined that the approach to an assessment of damages in respect of a tariff and non-tariff award where concurrently caused PSLA is present is that the court should:

  1. assess the tariff award by reference to the Regulations; 
  2. assess the award for non-tariff injuries on common law principles; and 
  3. “step back” in order to carry out any necessary adjustment so as to avoid any possible overcompensation.

That largely supported the approach taken by DJ Hennessey in the lower court, with one important caveat, namely 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. Hence, the Court of Appeal would actually have awarded more damages than DJ Hennessey in Briggs.

In coming to this decision, it seems clear that the view of the majority is that Parliament has limited the implications of the tariff to whiplash (and minor psychological) injuries and if it wants to go further then it must expressly do so.

The lead judgment

The lead decision was given by Lady Justice Nicola Davies who after summarising the background of the two test cases of Rabot and Briggs, spent some time setting out extracts from the 2018 Civil Liability Act and subsequent 2021 regulations. It appears she was keen to point out that there were multiple descriptions of the legislation being confined to whiplash, for example (with my emphasis):

"The heading to the 2018 Act states: “An Act to make provision about whiplash claims…”.

The determination by a court of damages for PSLA in such cases is governed by section 3 of the 2018 Act. The relevant provisions include:

3. Damages for whiplash injuries…" paragraphs [6],[7].

It is clear this weighed heavily in the court's decision-making:

"The 2018 Act and the Regulations 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…

There 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."[25],[26]

And so in the view of Davies LJ, "the approach of the court begins from the premise that the focus of the 2018 Act and the Regulations is directed to whiplash injuries: they were not intended to and did not alter the common law assessment of non-whiplash injuries."[33]

Having successfully made that point, she notes that The Act and the Regulations are silent as to how the courts are to assess damages in mixed injury cases and goes on to refer to the clear guidance in Sadler v Filipiak [2011] EWCA Civ 1728, also considered by DJ Hennessey in the lower court, that there will frequently be an overlap in the various symptoms such that a simple aggregation of the individual injuries would represent overcompensation. Hence the need to step back once the two different injuries have been valued.

The words in section 3(8) of the regulations actually replicate the wording used by Pitchford LJ in Sadler when he stated that it is necessary to stand back from the compilation of the individual figures in considering whether the award for PSLA should be greater than the sum of the parts “in order properly to reflect the combined effect of all the injuries upon the injured person’s recovering quality of life…”[34].

In Davies LJ's view, the fact that Parliament has used the same expression adds weight to the contention that the approach is that the award must reflect a common law assessment of the combined effect of all the PSLA which is the result of concurrently caused injuries in both the tariff and non-tariff awards subject only to the limits imposed by the section on the amount recoverable for the tariff injury.

In her lead judgment, she states that any fear of windfall damages is negated by the fact that Parliament has significantly depressed the value of PSLA for the tariff injury. It is worth noting that one point that was unfortunately never placed before the court was that the actual level of awards for bruised elbows accompanying whiplash claims pre-reform was substantially less than the JCG and that is where the windfall comes in.

In Rabot, following the Sadler guidance, DJ Hennessey added the two figures for whiplash (tariff) and knees (non-tariff) together and then “stepped back” in order to reach a final figure by making an appropriate deduction. The judge identified the clear overlap between the injuries based upon the medical evidence and noted that in terms of loss of amenity there was nothing that could be attributed to the knee injuries alone. The ‘overall award’ was assessed to be £3,100. That was considered the correct approach.

In Briggs, DJ Hennessey again accepted that there was an overlap in PSLA recognised within each award. She noted that the majority of the pain, suffering and limited loss of amenity appeared to flow from the whiplash injury. She assessed the tariff award to be £840, the non-tariff award to be £3,000 and reduced the latter figure by £1,040 to recognise the “clear overlap on the basis of the medical evidence”. She made a total award of £2,800. 

As the judge’s adjustment resulted in a total figure which was lower than the assessment for the non-tariff injury in isolation, Davies LJ decided the adjustment was too great. In her view a reduction of £340 to the non-tariff award, giving a total award of £3,500 would represent appropriate compensation for the injuries sustained.

The dissenting judgment of the Master of the Rolls

The dissenting judgment was from the Master of the Rolls, Sir Geoffrey Vos.

He noted again that Rabot and Briggs were both cases in which there was no loss of amenity caused by the additional injuries that was not also caused by the whiplash, and that the whiplash in each case was longer lasting than any of the other injuries. So the main issue for him was around the allowance of loss of amenity or otherwise for the non-tariff injuries.

He made reference to the fact that the latest OIC data showed that 67.3% of whiplash claims were, in fact mixed injury claims. He had made a similar reference to this during submissions suggesting this is weighing heavily on his mind.

The fundamental disagreement is he believes that Parliament has legislated for the reduction of general damages for non-whiplash personal injuries in cases where whiplash injuries have been sustained, even though the statute does not appear specifically to be directed at non-whiplash cases. He bases this on section 3 of the 2018 Act.

Why? I have to say that the interpretation of section 3 that follows seems to be a lot more contrived than the simpler interpretation set out by Davies LJ. One can't help wondering if the MR was influenced in his thinking by the extent of the additional injuries claims, and the potential that they will undermine the original intention of the reforms to reduce the cost of motor insurance.

Firstly, section 3(1) provides that “[t]his section applies in relation to the determination by a court of damages for pain, suffering and loss of amenity in a case where … a person … suffers a whiplash injury because of driver negligence …” [63]. He notes that Section 3(1) does not say that it applies where a person makes a claim for PSLA damages for a whiplash injury.

That, in his view, dismisses the claimant argument that a claimant could simply not claim for whiplash at all and recover higher amounts for PSLA for non-tariff injuries. Even if they do not claim, they remain bound by the section as a result of suffering a whiplash injury.

Secondly, section 3(2) lays down that: “[t]he amount of damages for pain, suffering and loss of amenity payable in respect of the whiplash injury … is to bethe amount in the Regulations [64].

Therefore he went on to say that in cases such as these, where the judge has made the specific finding on the evidence that the additional injuries did not cause any loss of amenity that was not caused also by the whiplash injuries, the statute therefore provides that the amount of damages for the loss of amenity caused by the whiplash is the tariff amount. 

Once that has been paid, the claimant cannot claim compensation for the same loss of amenity caused also by another injury on a different common law basis. The statute has dictated the compensation that is to be paid for that very loss. Seeking more would in his view violate section 3(2). It is not, therefore, accurate to say that the statute only legislated for compensation for whiplash and cannot affect the common law compensation for other injuries, according to the MR.

Note however, in any event this would only apply in cases where there is no additional loss of amenity caused by the non-tariff injury, and although not said explicitly the MR seems to accept the claimant would be entitled to the Pain and Suffering element of the non-tariff injuries. He would have sent the cases back to the lower court to be re-assessed on that basis.

The rebuttal

Interestingly, Stuart-Smith LJ not only agrees with the lead judgment of Davies LJ, but goes on to give a clear rebuttal of the opinion of the Master of the Rolls…

As he puts it "Sections 3(1) and (2) say nothing, either expressly or by necessary implication, about the assessment of damages for other injuries, whether or not those other injuries give rise to overlapping (i.e. concurrently caused) symptoms or loss of amenities. They do not, in my judgment, support an argument that the Act has, without mentioning them, fundamentally altered the basis of assessment of damages for those other injuries. If further support for this more limited interpretation of sections 3(1) and 3(2) were required, it is to be found in the clear statements of (political and) legal policy set out by Nicola Davies LJ at [3]-[6] above. It is also to be derived from the fact that, where the statute intends to refer to the assessment of damages for other injuries, it does so expressly: see section 3(8))" [45].

So he backs Davies LJ's view, supported by all of the accompanying notes, that section 3 is all about whiplash and does nothing to fetter the discretion of the court in assessing the non-tariff injuries.

What he also noted was that whilst "it is not open to the Courts to extend the effect of the language of the 2018 Act so that, by a sidewind, it removes the right to a common law assessment of other injuries… If such a step is to be taken, it must be taken by Parliament. No doubt, if Parliament takes that step, it will legislate in clear terms that leave no doubt as to the scope of the alteration it wishes to make to the existing common law, just as (in my judgment) it has done in its alteration of the common law relating to the assessment of damages for PSLA for qualifying whiplash claims by the 2018 Act." [49]

That statement seems to sum up neatly the view of the majority that Parliament has limited the implications of the tariff to whiplash (and minor psychological) and if it wants to go further then it must expressly do so.

What would the actual difference be?

Some have suggested that the decision does not give sufficient clarity but in terms of approach it couldn’t really be any clearer – you decide on the correct tariff figure, assess the non-tariff injuries by reference to JCG, add them together, and then make a deduction for overlap where such exists, save that the deduction should not exceed the tariff amount.

Davies LJ sets out her interpretation of how this applies to the circumstances in Rabot and Briggs.

What would however have been really interesting to see is how the Master of the Rolls would have valued the claims. He simply says he would have sent the case back to the lower courts for assessment with his guidance. But how much difference would that guidance have actually made?

Presumably he would have made no allowance for the loss of amenity element of the knee injury in Rabot so some deduction on the £2,500 DJ Hennessey valued for the knee. But how much of that £2,500 is Pain and Suffering, and how much is Loss of Amenity? DJ Hennessey had already conceded there was little evidence of loss of amenity so arguably the bulk of that is for pain and suffering. DJ Hennessey made a deduction of £790 from the overall assessment which could be said to be the small loss of amenity allowance. Would DJ Hennessey have actually valued the case any differently if it had been sent back?

Similarly in Briggs, DJ Hennessey conceded there was no loss of amenity caused by the non-tariff injuries to deduct. So she must have valued the non-tariff injuries recognising there was no loss of amenity.

Had the MR specifically said that in valuations under JCG, 50% is for PS and 50% is for LA then we would know how to value, but he didn’t because he couldn’t give such general guidance. Each case will turn on the facts. But given the facts of each case were that there was no loss of amenity caused by the non-tariff injuries, the MR approach doesn’t seem to make much difference.

What was not argued?

There seem to have been a couple of important points that weren’t addressed by the Court of Appeal.

Firstly, that the real intention of Parliament was not to tackle the cost of whiplash claims but to reduce the cost paid by consumers for insurance.

In November 2016, the Lord Chancellor and Secretary of State for Justice issued the Consultation Paper entitled “Reforming the Soft Tissue Injury (“whiplash”) Claims Process” and the Executive Summary describes the scope of the Consultation in the following terms:

“The government is bringing forward a new reform programme to tackle the high number and cost of personal injury claims, and in particular RTA related soft tissue injury claims, the vast majority of which are whiplash claims."

It went on to say "The number of soft tissue injury claims made in England (and) Wales remains too high. There are a number of reasons for this, including the difficulty in identifying and assessing soft tissue injury claims…. the availability of compensation at levels many claimants clearly regard as significant, means there are substantial financial incentives for claimants to bring cases regarding relatively minor injury, or to exaggerate the severity of their injury." So whilst the majority of claims are whiplash, that wasn’t the sole focus.

Davies LJ noted a previous comment from Lord Briggs in Attorney General of St Helena v AB [2020] UKPC 1 that “an important part of the purpose of PSLA damages is that they should reflect what society as a whole considers to be fair and reasonable compensation for the victim."[23]. However the views of society as set out in the original intention of the reforms were never explored.

The problem of course is that as matters proceeded through Parliament the Bill, and subsequently the Act and Regulations, became narrowed to whiplash as Davies LJ has indicated. It may well have made little difference what the intention of government was originally but it would have been interesting to see more emphasis on the overall intention to reduce the amount society can afford to pay in premiums, as opposed to just whiplash claims. The intention behind the reforms is in danger of being completely eroded by the Court of Appeal judgment.

Secondly, evidence of actual awards for additional injuries was never placed before the court. Davies LJ commented in support of her judgment that "any fear of windfall damages is negated by the fact that Parliament has significantly depressed the value of PSLA for the tariff injury" [37]. So there was concern about a windfall but the Court of Appeal were constrained by the assumption that JCG reflect the awards to claimants for non-tariff injuries. Sadly there appears to have been no evidence placed before the courts about specific awards prior to the reforms, where a very small amount was allowed for non-tariff injuries reflecting that awards for such injuries were not reflective of JCG.

Thirdly, and related to the above, the judgment has effectively endorsed the JCG as a method for valuing claims when in fact claims routinely settle for lower amounts. The MOJ acknowledged this point in a note from March 2021 in response to the MASS Submission to the House of Lords Secondary Legislation Scrutiny Committee: "It should be noted that the levels suggested in the JCG are generally higher than the amount that most claims settle for. This can be explained in part by the fact that the JCG is developed using outcomes of cases heard by the court. By default, the judiciary only hear more complex claims where there is significant dispute, and this can often result in higher awards for claimants. For example, the average pre-court settlement for a 9-month whiplash injury is currently around £2,500 but could attract an award of £3,710 if the JCG are used".

Again, it might have been disregarded but it would have been good to see the point raised.

Finally, what about the overlap of pain and suffering, not just loss of amenity? There was no discussion about the level of pain and suffering caused by these minor injuries. In terms of overlap if there is some minor pain from the neck is it actually exacerbated by pain and suffering from the knee? If indeed low level analgesics such as paracetamol required for the neck would remove the pain of both, is there in fact a complete overlap of pain and suffering? It is a shame the discussion was limited to loss of amenity.

Likelihood of further appeal

The defendants asked the Court of Appeal for leave to appeal which was refused. The next step would be to seek such permission from the Supreme Court.

The fact that there was a dissenting judgment, and indeed from the Master of the Rolls, might help to suggest there is an arguable point of law. But it is difficult on the face of it to argue with the logic of the lead judgment. The Supreme Court would have to be satisfied that there is an arguable point of law just to grant permission. The prospects of success would be difficult to predict but would certainly not be guaranteed and for the reasons set out above it isn’t even clear what difference it would make.

Another point to consider would be the timescale for any appeal. It is highly unlikely the Supreme Court would expedite a hearing in the way the Court of Appeal did and so many cases could be left in limbo for further year or two when many insurers are already concerned by the backlog of claims.

The better approach may be to look at the comments of Stuart-Smith LJ and focus on lobbying for changes to legislation. The timescale is unlikely to be any quicker as it's hard to see this being a priority for government at the present time, but one feels that is the most likely route to changes in how additional injuries are valued now the Court of Appeal has given its opinion.

Impact of the decision on the future

Claimant's attendance at hearing for cross examination

It is important to note that in neither Rabot or Briggs were the claimants in attendance to be cross examined and it appears that DJ Hennessy based her assessment of the non-tariff injuries from the medical evidence alone. There isn’t for example any reference to witness evidence of the claimant.

We have always advocated that it is preferable for the claimant to be in attendance and the case heard in the claimant's local court, and that remains an area of focus to hear actual evidence around the extent of the additional injuries.

This is likely to become a contentious issue moving forwards as generally claimant solicitors object to their clients attending in person. There may well be satellite litigation in respect of this point. It should be remembered that the OIC process was not designed to mirror the current stage 3 of the MOJ process but align with the small claims track process, when the claimant does attend. For example in a £495 tariff claim for a five month whiplash injury the claimant MUST attend the hearing in person if they are seeking an uplift for exceptional circumstances. The sum at stake in this example is £99 but the principle is that the claimant should be present to give evidence as to why an uplift is applicable. It therefore seems perverse that in an additional injuries matter where the sum at stake is much higher the claimant should not attend.

The comments of some judiciary in recent judgments suggest that there may be a need for increased clarity around the differences between MOJ stage 3 and the OIC small claims track process.

Plausibility of additional injuries

What is disappointing in Rabot and Briggs is that there was no discussion in either court as to how in these low value minor claims the claimants sustained soft tissue injuries to the knees with a prognosis of four to five months in Rabot and six months in Briggs.

Whilst there was a great deal of discussion about the badminton analogy in the Court of Appeal, a more powerful analogy might have been how quickly bruising/soft tissue injuries to the knee following an impact with a coffee table resolve compared to a similar type of injury sustained in a road traffic accident. Also there was no discussion as to how these claimants had actually banged their knees in the collision and the plausibility of the same.

The medical reports we are seeing provide for lengthy prognosis periods for bruising and very minor impact injuries of up to 6 months and more which stretch clinical credibility and are open to challenge. It is also often difficult to reconcile the type of injuries such as a sprained ankle to the collision itself. On board vehicle data and Telematics is likely to be increasingly leveraged as insurers seek to test claimants' credibility, and again the usefulness of such evidence is likely to lead to further satellite litigation.

Additional injuries frequency

We have always maintained that the key to challenging non-tariff injuries is in relation to causation and the mechanics of the accident and the cross examination of the claimant. This strategy remains sound and is crucial to defeating, what we believe, will be increased claims frequency for non-tariff injuries in light of the judgment. 

The latest OIC data shows that additional injury frequency reported at SCNF disclosure has steadily increased since the OIC was introduced.

OIC test case

In Briggs, disappointingly the award of DJ Hennessey was increased by £700 with only £340 being deducted for the overlap, less than 9% reduction. 

As the Court of Appeal has made it clear that the maximum deduction for the overlap can be no greater than the tariff amount we are likely to see smaller reductions for overlap in the future and this coupled with an increase in additional injuries frequency will undoubtedly increase the claims for general damages.

For those claimant solicitors who rely on deducting a percentage of damages for costs, the difference in a claim where additional injuries are claimed is stark.

A six month tariff injury would equate to a deduction of £123.75 against a deduction of £750 if the total award including mixed injuries amounts to £3,000.

The intention of the reforms was to reduce both the frequency and cost of whiplash claims in order to lower the cost of insurance for consumers. Up to now the OIC has delivered in terms of frequency reduction but the risk is that claim farmers will come back into the market now that they have greater clarity around the potential value of claims, and those initial gains will be lost.

Medical reports

The present OIC position is that a large number of medical reports have not been uploaded on the portal pending the outcome of the judgment.

We have seen a change of approach by some medical experts in recent months with reports containing more information including mechanics, causation and pain, suffering and loss of amenity of the non-tariff injuries.

We are likely to see medical reports provide more detail of the pain, suffering and loss of amenity caused by the additional injuries. In neither Rabot nor Briggs could DJ Hennessy discern any particular difficulty caused by the knee injuries albeit they were said to be painful to a degree over a period of time.


Going forward overlap reductions are likely to be modest and damages awards will be higher as a result of this and the anticipated increase in additional injuries. This in effect will bring awards for damages more in line with the pre 31 May 2021 figures.

Will we see prognoses for whiplash remain fairly static as the longer the prognosis the more that can be deducted from the additional injuries by overlap? It will be interesting to see.


One other concern we have is that we are likely to see more claims commence in the MOJ portal with claimants' solicitors arguing that there were reasonable prospects of the claimant recovering more than £5,000 for personal injury. This is likely to be an increasing area of contention going forward.

Quantum disputes

There is clearly going to be more disagreement between the parties on valuations, resulting in more cases proceeding to court on quantum. That said, if you can keep appropriate cases in the OIC you can continue to benefit from the non-costs bearing environment.

The Consumer

One other disappointing aspect that was not mentioned in the Court of Appeal is the impact that this decision has on the consumer and how the benefits of the reforms are being eroded. The primary objective of reducing insurance premiums will not be met as the anticipated savings will not have been achieved. This needs to be included in the lobbying agenda for further change.


We will continue working with the insurance industry through our seats on various bodies and working parties. Separately we will continue to challenge spurious claims ensuring that full arguments are before the courts and reporting cases to support lobbying.

There is much to digest following this judgment so if you have any queries, please do not hesitate to contact Nigel Teasdale or Nicola Critchley.

Further Reading