Whiplash regulations considered by Lords Select Committee

On 16 March the Secondary Legislation Scrutiny Committee of the House of Lords reported on the recently-tabled Whiplash Injury Regulations which set tariffs for general damages for whiplash injuries with symptoms of up to two years’ duration. The statutory tariffs (made under powers in the Civil Liability Act 2018) are appreciably lower than common law awards to date have been. The Committee report notes criticisms of the tariff and of the overall RTA small claims scheme – both of which will take effect from 31 May this year – made by the solicitor’s group MASS but refers to a letter from the Ministry of Justice that meets those criticisms in full:

“The MoJ letter is a robust response that makes clear that these matters were fully debated during the passage of the 2018 Act and the issues were decided by Parliament. We note that illustrative tariff rates were available when the Bill was in progress, which we regard as best practice, and so the House was clear that it was agreeing to a substantial reduction in awards. We also note that the 2018 Act includes a number of provisions which require review of how this scheme operates and that it can be modified if unintended consequences are found.”


Alistair Kinley, Director of Policy & Government Affairs
alistair.kinley@blmlaw.com

BXB: “the latest episode in the attempts of religious organisations to escape vicarious liability in claims for damages for sexual offences”

This striking description of a defendant’s unsuccessful appeal – it was roundly dismissed by all three members of the court – comes at the end of the recent judgment in The Barry Congregation Of Jehovah’s Witnesses v BXB. The decision probably does not develop the law on vicarious liability as such (as will be seen below from what Nicola Davies LJ said) but mark its application on appeal in a matter involving sexual abuse of an adult. Relevant passages from each of the three judicial opinions are set out below.

Contained within the tailored test [of whether the relationship between the wrongdoer and the defendant company/body is sufficient to justify the imposition of vicarious liability on the latter for the acts of the former] in cases of sexual abuse is the concept of the conferral of authority upon the tortfeasor by the defendant. In my judgment, the tailored version of the test applies in cases in which adults are alleged to have been sexually abused as it does in such cases involving children because the rationale for the test is the same. The issue is the connection between the abuse and the relationship between the tortfeasor and the defendant. It is not the particular characteristics of the victim. [Nicola Davies LJ at 87.]

In principle, however, the test must be equally applicable to cases involving the sexual abuse of adult victims, although its application will need to take account of the differences between children and adults. In such a case [ie involving adults] the relationship is less likely to be a relationship in which the tortfeasor exercises power over the victim and the victim is dependent on or subservient to the tortfeasor. Whether such a relationship exists, however, will be a question of fact in each case. [Males LJ at 96.]

This appeal is the latest episode in the attempts of religious organisations to escape vicarious liability in claims for damages for sexual offences committed by those whom they have placed in positions of responsibility and moral authority … even an adult may be susceptible to relationships which involve a risk of abuse, particularly in the context of those spiritual beliefs and doctrines which promote a culture of unquestioned obedience to religious leaders. [Bean LJ at 105.]


Alistair Kinley, Director of Policy & Government Affairs
alistair.kinley@blmlaw.com

Two setbacks for any new discount rate in NI?

Yesterday the High Court in Belfast heard a judicial review challenge to the Department of Justice’s (DoJ) decision not to strike an interim personal injury discount rate (PIDR) while new legislation on rate-setting proceeds. Later that afternoon the Justice Committee discussed the timetable for the new legislation, as a result of which the Bill now looks unlikely to conclude before the year end.

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