2024: Expected Highlights in Personal Injury

What does 2024 hold for Personal Injury Lawyers? Last year I summarised what was coming up in 2023 to the theme of Kylie songs. Continuing in a similar theme, here is what to expect by way of some appeals and legislation in 2024 summarised in the works of Prince:

One of Us: Supreme Court hears Hassam v Rabot

A highlight of 2023 was the Court of Appeal’s judgment in Hassam and another v Rabot and another [2023] EWCA Civ 19 in January. This tackled the assessment of general damages for pain, suffering and loss of amenity in Portal claims where injuries included whiplash injuries, valued according to a tariff, and non-whiplash injuries. As expected, permission has been granted to the defendants to take their appeal further to the Supreme Court. District Judge Hennessey in Birkenhead and the majority of the Court of Appeal both decided that damages for the non-tariff injury should be assessed on common law principles, added to the tariff award and then the judge should step back and carry out an adjustment to the figure taking into account the multiple injuries. The dissenting judgment of the Master of the Rolls, focusing on the overlap in loss of amenity between the whiplash and non-whiplash injuries, is likely to be the focus of the appeal. Argument is to be heard on one day on 20 February 2024.

Let’s Go Crazy: CJC Consultation on Capacity

Having established a working party in 2022, the Civil Justice Council has decided to finally tackle the practical problem of how to identify, investigate or resolve issues of capacity to litigate in civil cases by launching a public consultation. Personal injury lawyers are used to dealing with claimants who either lack capacity or have fluctuating capacity usually due to acquired brain injury. The first question in the consultation paper is likely to be one to draw in the defendant lawyers who will strongly not agree with what the CJC clearly thought was an easy opener: “do you agree that other parties to the litigation do not generally have any legitimate interest in the outcome of the determination of a party’s current litigation capacity?”. If you want to have your say, the consultation closes on 17 March 2024.

I Feel for You: Polmear, Paul and Purchase secondary victim litigation

The appeal in three conjoined secondary victim cases (Paul and another v Royal Wolverhampton NHS Trust, Polmear and another v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed) was argued in front of the Supreme Court in May 2023 and judgment is awaited. Each case concerned whether a claimant could bring a claim for psychiatric injury caused by witnessing the death or other horrifying event of a close relative as a result of earlier clinical negligence. Readers will remember the reluctance with which the Court of Appeal found for the defendants, being bound by precedent. Now the Supreme Court has the chance to examine the test for recovery for secondary victims afresh.

Little Red Corvette: Armstead v RSA credit hire in the Supreme Court

Judgment from the Supreme Court is awaited in the credit hire case of Armstead v RSA. This is an unusual case about an accident which caused damage to a Mini that the claimant had hired from well-known credit hire firm Helphire. The accident was not the claimant’s fault and the at-fault driver was insured by RSA. Two years after the accident, the claimant was pursued by Helphire for the cost of repairs and loss of use of the Mini under her agreement with Helphire. The whole claim was less than £5,000. The claimant then brought proceedings against RSA as bailee of the Mini and as the matter has ping ponged through the courts the issue has been narrowed down as to whether the claimant could bring a claim against RSA for Helphire’s loss of use under the clause of her agreement with Helphire or whether that was pure economic loss.

Money Don’t Matter Tonight: Review of the Discount Rate

The Civil Liability Act 2018 provided for reviews of the discount rate every 5 years. The Lord Chancellor’s review of the current discount rate must commence by 15 July 2024.  In 2023 the Personal Injury Discount Rate Expert Panel was set up and there has already been a public consultation and call for evidence. A hint as to the likely future discount rate could be obtained from the Isle of Man’s recent increase in the Personal Injury Discount Rate from -0.25% to +1% following advice from the Government’s Actuary Department. Will similar be recommended for England, or will a dual rate system work?

Article by Jasmine Murphy

28 December 2023