The news that the Civil Liability Act 2018 received Royal Assent on 20th December 2018 may have passed many by due to the Christmas Holiday period. Now that it is an Act of Parliament it is perhaps sensible to look more carefully at the terms of the Act to assess what areas may give rise to dispute as it comes into force.
As a recap the Act is designed to make “provision about whiplash claims and the personal injury discount rate”. I propose to limit my consideration in this article to the whiplash claims element of the Act. A subsequent article will discuss the discount rate implications.
The Act: Whiplash
The first issue to consider is what is meant by a whiplash injury for the purposes of the Act.
Section 1 defines a whiplash injury as “a soft tissue injury in the neck, back or shoulder” which is a “sprain, strain tear rupture or lesser damage of a muscle tendon or ligament in the neck back or shoulder” or a soft tissue injury which is “associated with a muscle tendon or ligament in the neck back or shoulder”. This definition is unlikely to cause significant difficulties for a Claimant who only suffers that injury. The issue is likely to arise when a Claimant suffers more than one injury in the same accident. How is such a claim to be dealt with?
This difficulty has in part been recognised by the Act. Pursuant to section 1(3) there is a definition of excepted injuries. These are injuries that fall outside of the definition of a whiplash injury even though they include a soft tissue injury to the neck, shoulder or back.
Pursuant to section 1(3) an injury that would otherwise fall within the definition of a whiplash injury will be an excepted injury if “it is an injury of soft tissue which is part of or connected to another injury and the other injury is not an injury of soft tissue to the neck back and shoulder”. This exception in my view creates a large area of uncertainty that is likely to be subject to litigation in due course.
It is at unclear as to what is meant by the “whiplash injury” being “part of or connected to” another non whiplash injury. When can any injury be said to be part of or connected to another injury? What is it that is said to make the two injuries connected or a part of each other such that it is no longer a whiplash injury. For example will any other injury sustained at the same time as the whiplash injury be connected to it? It is certainly temporally connected. If correct that would mean any other injury sustained at the same time would take the claim outside the Act. Perhaps the required connection will be limited to cases where there is a non soft tissue injury to the neck, shoulder or back. Where for example the Claimant sustains a dislocated shoulder in the accident they presumably will also suffer a soft tissue injury to the shoulder as part of that injury. Is this the connection required? What then is the dividing line? Is a soft tissue arm injury part of or connected to a soft tissue shoulder injury? What about headaches experienced following the accident. Are they part of or connected to the whiplash injury such that the entire claim falls outside of the Act? This all remains to be explored.
Some clues to the likely interpretation can be found by considering the remaining parts of the Act. Pursuant to section 3, the Act applies “in relation to the determination by a Court of damages for PSLA in a case where the Claimant suffers a whiplash injury that does not exceed or is not expected to exceed two years in duration”.
The section then provides that regulations may be made by the Lord Chancellor to specify the amount of damages that will be payable for the whiplash injury (3(2)) or any minor psychological injury sustained at the same time (3(3)) or both (3(4)). The tariff will be based on the duration of the injury.
However section 3(8) states as follows: “Nothing in this section prevents a Court in a case where a person suffers an injury or injuries in addition to an injury or injuries to which regulations under this section apply awarding an amount of damages for PSLA that reflects the combined effect of the persons injuries (subject to limits imposed by regulations under this section)”.
This section raises a confusion for a Claimant who suffers two injuries in the same accident. Does the “subject to limits” condition apply only to the whiplash injury element of the claim or does it apply to the claim as a whole. If it only applies to the whiplash element of the claim this would suggest that the Court has the power to award both a tariff amount for the whiplash element and a JC Guidelines amount for the remaining injury. Conversely if the “subject to limits” applies to the claim as a whole then it suggest that a Claimant who suffers both a whiplash injury and another injury is limited to the whiplash tariff amount for all of their damages.
It might be thought that the most obvious interpretation of the “subject to limits” condition is that it applies to the whiplash element of the claim only. It could be difficult to justify limiting a Claimant who suffers both a whiplash injury and say a broken foot to the tariff amount for whiplash (assuming the whiplash is not considered to be part of or connected to the foot injury for the purposes of s.1(3)).
However the above ‘obvious’ interpretation becomes less clear when section 5 of the Act is considered. Section 5 has the heading “Uplift in Exceptional Circumstances”. It states (as is relevant with underlining added for emphasis) as follows:
“Regulations made by the Lord Chancellor may provide for a Court…. (c) in a case where the court considers the combined effect of
(i) an injury in respect of which a tariff amount is specified by regulations and
(ii) one or more other injuries
to determine that an amount greater than the tariff amount is to be taken into account when deciding the amount of damages payable for PSLA in respect of the injuries in (i) and (ii)”
By including within it both the tariff and non tariff injuries (see underlining) this section might suggest that regulations are to be made by the Lord Chancellor that will allow the Court where there are both whiplash and non whiplash injuries to award an amount greater than the tariff amount for both of the injuries. This suggests that absent regulations the
Court is in fact limited to the tariff amount for both the whiplash and non whiplash injuries. This would support a conclusion that the “subject to limits” in section 3(8) applies to the whole claim and not just the whiplash element. This is a surprising conclusion if correct.
Further confusion arises from section 5(2). This states that the regulations “may require” a Court to be satisfied before determining that a higher award than the tariff is to be taken into account that “the degree of pain suffering and loss of amenity caused by the whiplash injury make it appropriate to use the greater amount and the whiplash injury is exceptionally severe or where the persons circumstances increase the PSLA caused by the injury those circumstances are exceptional”. The intention therefore appears to be for the regulations to provide the Court with a mechanism to award a higher sum than the tariff for the whiplash injury in circumstances where that whiplash injury and its consequences are exceptional. It does not obviously relate to the non whiplash injury. However by including within its remit at 5(1)(c) both the whiplash and non whiplash injury this creates uncertainty over how this will be applied in practice. It also leaves it unclear whether the Court will be limited to the tariff for both the whiplash and non whiplash injury.
The Act has attempted to define whiplash. However life is often more complicated than this. Claimants can suffer one or more injuries at the same time. The Act is less clear on how such cases should be dealt with. I suspect as a result that we will see a significant growth in cases where other injuries have been sustained as well as the traditional whiplash injury. The arguments are likely to centre over whether those other injuries are connected to or part of the whiplash injury and/or whether the Court is able to award separate JC Guidelines based damages for that other injury. Either way the intention will be to seek to remove the claim from the strict confines of the Act and thereby obtain higher damages and costs.
I suspect the foregoing problem is precisely why section 2 of the Act expressly provides the Lord Chancellor with the power by regulation to amend the definition of whiplash injury in the Act. However it is not clear to me how the definition could be amended to remove the tension that will arise with a Claimant who suffers both a whiplash injury and another injury at the same time. I suspect any amendments to the definition will merely lead to greater difficulties in practice. This remains a fruitful area of further litigation.
Regulation 3 – Psychological Injuries
Another area of potential dispute arises from regulation 3(3). This provides that if the Claimant suffers one or more “minor psychological injuries” on the same occasion as the whiplash injury the amount of damages payable for that minor psychological injury will be specified in regulations. However there is no definition of what is meant by a “minor” psychological injury in the Act. The explanatory notes reveal that the intention is for Travel Anxiety to be within the definition. However the term is not defined. It may well be that the regulations if issued will need to be studied carefully to see what injuries are covered. Will we see a growth in travel phobia replacing travel anxiety. Will PTSD or Depression become the new norm. Again this is an area that is likely to be ripe for further litigation.
The stated intention of the government in introducing the Act was to address the apparent widespread concern that there are too many fraudulent Road Traffic Accident claims. It is perhaps somewhat perverse therefore that through their drafting they appear to have incentivised Claimants to “add in” other injures to their claim to avoid the strict confines of the Act. How far Claimants are prepared to go in adding in new injuries to their claims will be an interesting area to watch as the Act takes effect.