First two OIC mixed injuries cases head to Court of Appeal

Hennessy: OIC claims are currently more time-consuming

The first two cases on mixed injury claims – those involving both whiplash and non-whiplash injuries – have been leapfrogged to the Court of Appeal.

When the OIC went live, the Ministry of Justice explicitly left guidance on how to handle claims involving both tariff and non-tariff injuries for the Court of Appeal. However, it has taken time for cases to start reaching the county court.

It is understood that His Honour Judge Wood in Liverpool has leapfrogged two decisions by District Judge Hennessy in Birkenhead to the Court of Appeal, Rabot v Hassam and Briggs v Laditan.

She held that the proper approach was to value both injuries separately in accordance with whatever scheme or tariff applied, and then reduce the total for any element of overlap of the non-tariff element with that already compensated for within the tariff for pain, suffering and loss of amenity.

She rejected the defendant’s submission in Rabot that she should look at the primary (whiplash) injury first and then “add to it”.

The judge held that non-tariff injuries should be valued using the Judicial College Guidelines: “In terms of the actual valuation of the non-tariff injury, if I have two claimants with identical knee injuries, one caused in an RTA where the claimant also has the misfortune to have a whiplash injury and one caused when the claimant fell from a ladder at work, why should the valuation to be placed on the knee injury in any way differ?”

Speaking at last week’s Motor Accident Solicitors Society annual conference, DJ Hennessy said that, in determining her approach, she was bound to follow the 2011 Court of Appeal ruling in Sadler v Filipiak, a case involving multiple injuries.

In that, Lord Justice Pitchford held: “It is in my judgment always necessary to stand back from the compilation of individual figures… to consider whether the award for pain, suffering and loss of amenity 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 or, on the contrary, should be smaller than the sum of the parts in order to remove an element of double counting.

“In some cases, no doubt a minority, no adjustment will be necessary because the total will properly reflect the overall pain, suffering and loss of amenity endured. In others, and probably the majority, an adjustment and occasionally a significant adjustment may be necessary.”

In Rabot, the tariff award was £1,390 and the judge awarded £2,500 for the non-tariff injuries. She then reduced the total of £3,890 to £3,100 “to recognise the clear overlap on the basis of the medical evidence”.

In Briggs, the tariff award was £840 and non-tariff award £3,000, but the judge reduced the total from £3,840 to £2,800.

She held that the majority of the pain, suffering and loss of amenity “appears to flow from the whiplash injury”. The “calibration” of this to be taken into account as being compensated for by the whiplash tariff “is different to the calibration involved in the non-tariff award”.

Her ruling went on: “That is new and somewhat unfamiliar territory but, on careful analysis, my view is that established principles can be applied to it and that is how I have attempted to reach the valuation.”

There is a cross-sector mixed claims working group looking to take test cases to the Court of Appeal – and it has been struggling to find them – but these two cases are separate from it.

Brett Dixon, one of the claimant lawyers on the working group, said: “A basket of cases is needed going forward as there are a number of related issues that need addressing by a higher court judgment. It is fair to say that the problems with the OIC have led to a low number of cases that are suitable for appeal.

“These two cases are not within the working group scheme. The scheme is designed to give the client the best protection. Their damages are ring fenced and there is a degree of costs protection for them.

“The group anticipates considering further cases going forward and would look similarly for them to be leapfrogged to the Court of Appeal.”

DJ Hennessy told the conference that she has so far dealt with around 40-50 OIC cases, mainly over “basic” quantum disputes. The process “is more time consuming for staff and judiciary to deal with” than before the portal, although she expected this to change as they grew more familiar with it.

The sooner the Court of Appeal issued guidance, “the better for everybody – we do need a definitive view of how we go about this process”. However, she questioned whether the current rules and legislation actually provided an answer.

Other issues the judge said have come up in OIC cases were parties using the wrong court form, whether the court valuation form should include figures, whether claimants would give evidence, attempts to argue unreasonable behaviour, and the claimant’s entitlement to interest on their damages.

On the court valuation form, DJ Hennessy said the issue has yet to be argued in front of her, but she wondered whether it was possible to carry out an assessment on paper without the figures.

At the same time, she stressed, much of the process would be familiar to litigators: “Ultimately these cases are just a species of small claim.”

Whether the claimant could prove there was a non-tariff injury, for example, was simply a question of the quality of the evidence. This was “nothing new”.

In a Q&A after her address, DJ Hennessy – a barrister who practised in personal injury before becoming a judge – recalled how “in the old days”, when there were multiple injuries, “you’d be adding figures up as you went along” and then coming up with a final figure without “showing your workings”.

This was not possible with mixed claims, meaning that “the gut feel to this has gone”. But she speculated that, in time, lawyers and judges may return to this method.

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