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Articles, News | Mon 30th Jan, 2023
In this week’s Dekagram we consider recent cases which raise some urgent questions around how the QOCS and whiplash tariff systems are working. And speaking of urgent questions, we encourage readers to get their questions on health tourism and cross border clinical negligence ready – for on Wednesday Dominique Smith and Travlaw’s Matt Gatenby will be rolling up their sleeves and answering them – use this link to register for what will be an informative discussion.
Can claimants afford to get cold feet when skating on thin ice? Costs consequences and QOCS protection on discontinuing
With the recent cold snap, and with rising fuel costs, this article considers whether QOCS protection will keep warm the wallet of a claimant who gets cold feet.
The judgment handed down last week by the Court of Appeal in Excalibur & Keswick Groundworks Ltd v Michael McDonald  EWCA Civ 18 makes clear that it will.
Decision at First Instance
Decision of the Court of Appeal
Setting aside a Notice of Discontinuance
It’s easy to have sympathy for the defendants’ plight, but this case makes clear that such sympathy is misplaced, for the present at least, as the QOCS system is i) broad-based, ii) mechanical, iii) represents a major departure from the traditional position that costs follow the event, and iv) designed to introduce a bar against enforcement of costs orders made against claimants should their claims fail.
In short QOCS means that claimants who get cold feet after skating on thin ice can still keep a warm wallet.
About the Author
Rob Horner was called in 1999 and is ranked by Chambers & Partners and the Legal 500 as a leading personal injury junior. He acts for both Claimants and Defendants in all claims involving personal injuries, including complex cross border claims raising questions of applicable law. He also has extensive experience of representing interested parties at inquests.
A mixed reaction to mixed injury claims
Back on 19th May 2021, I presented a Webinar on the incoming whiplash reforms, and concluded with a meme of the ill-fated Eddard Stark from Game of Thrones staring into the distance with the phrase “judgments are coming” plastered over his head.
Hate to say I told you so.
The combined appeals of Rabot and Briggs are in my view just the beginning. Where claims are brought involving tariff and non tariff-applicable injuries, the judgment leaves scope for further argument as to the correct approach. Given that there are 24,000 claims being made monthly in the Portal, and 91% of the claims are being fronted by lawyers, it is almost inevitable that further appeals will be made to gain clarity.
For those less familiar with the new system, the law is eloquently set out in the judgment itself at paragraphs 7-14 of the judgment; (See https://www.bailii.org/ew/cases/EWCA/Civ/2023/19.html).
Rabot involved whiplash and injuries to both knees. Award at first instance:
Briggs involved whiplash and injuries to the elbow, hip and knee. Award at first instance:
The approaches to quantifying mixed claims
As set out in the judgment, there are four possible approaches to assessing quantum in cases involving tariff and non tariff injuries:
But which one to take?
LJ Davies was clear that the Civil Liability Act (‘the Act’) was not intended to, and does not, change the method of assessing general damages for non-whiplash claims – that of:
In fact, it was noted that section 3(8) of the Act mirrors the words used in Sadler – that the award must “reflect the combined effect of all the injuries upon the injured person’s recovering quality of life…”
The rhetoric of the Claimant receiving a windfall from this approach was said to have been depressed by the value of the PSLA awarded in the tariff – which, it is quite clear, provides far lower levels of award than based off the Judicial College Guidelines.
To be clear, the correct approach is thus:
The only additional consideration is that the final award cannot be less than would be awarded for the non-tariff injuries if that had been the only injury suffered.
Rabot remained as before. Briggs was adjusted because of the additional consideration as follows:
Defendant insurers will, understandably, feel hard done by at this decision. Their ill feeling will only be bolstered by the dissenting judgment of the Master of the Rolls.
In both cases it was argued that the Claimants had:
It was further argued that Parliament had, through section 3 of the Act, legislated to reduce general damages for non-tariff injuries where whiplash had been sustained, despite not being specific on this issue.
Any insurer considering taking a further case to appeal should be mindful of the pre-emptive defence of the leading ruling of LJ Stuart-Smith. The interpretation of sections 3(1) and (2) in particular are defended, along with pointing towards the legal policy set out by LJ Davies. The judgment makes clear that only Parliament can make the 2018 Act apply to non-tariff injuries.
In my view, the points raised by the Master of the Rolls are likely to lead to a future appeal in circumstances where the loss of amenity suffered because of a non-tariff injury is more nuanced than in Rabot and Briggs.
For example, what if you have:
In this scenario, does the minor head injury cause any loss of amenity separate from or additional to the whiplash? If it doesn’t, how does the Court deal with the fact that the prognosis for the minor head injury is far shorter than the whiplash injury?
Following Davis LJ’s approach, you would:
Following the Master of the Rolls’ approach, you would:
The Master of the Rolls’ approach would, however, be subject to the additional consideration set out by LJ Davies noted above, that the final award cannot be less than would be awarded for the non-tariff injuries if that had been the only injury suffered, such that the £2,040 would need to increase to the level of the non-tariff award of £2,210.
For those of you who like SATS level maths, this argument will no doubt cause endless fun. As I said at the outset: Judgments are coming!
About the Author
Prior to being called to the Bar in 2015, Max Melsa worked with Gerard McDermott KC on all aspects of high-value cases arising from catastrophic personal injury, in particular involving travel and cross border claims of significant value and complexity. He now maintains a mixed practice of civil and family work, alongside representing interested parties at inquests.
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