Charlotte Victoria Hassam & Anor. v Yoann Samuel Rabot & Anor.

The claimant takes no issue with the judge’s original assessments of the tariff and non-tariff injuries but contends that the judge was wrong to make any further deduction to the amount and reduce the combined judgment sum to £3,100 on the basis there was an overlap in the PSLA between the two heads of loss.

The claimant’s primary case is that the judge should not have made a totality adjustment and should have aggregated the award which would have resulted in a total award of £3,840. The claimant’s secondary case is that even if the judge was correct in her approach the totality adjustment was too great. The adjustment of the total figure from £3,840 to £2,800 led to a total award of less than had previously been attributed to the non-whiplash injuries. Thus even if the court confirms the judge’s methodology and allowed a Sadler adjustment this should not have reduced the total damages to less than £3,700 as the figure reflects the fact that the judge’s composite figure for general damages for the non-whiplash injuries was £3,000.

The 2018 Act and the Regulations represent a statutory incursion into the common law method of assessing damages and a radical departure from the common law approach to such an assessment in that they abandon the “fair and reasonable” approach to the assessment of whiplash injuries and minor psychological injuries in cases falling within the scope of the legislation.

The mischief at which the legislation is directed is minor whiplash claims resulting from a motor vehicle accident. There is nothing in the wording of the statute or in the extra Parliamentary material which suggests, let alone demonstrates, an intention to alter the common law process of assessment for, or the value of, non-tariff injuries. The legislation was directed to and confined exclusively to whiplash injuries. There is no mischief which Parliament attempted to remedy in respect of the common law assessment of non-tariff injuries.

Parliament has chosen to legislate into the area of the common law of England and Wales but having done so, and in the absence of any clear indication to the contrary, it is presumed not to have altered the common law further than was necessary in order to remedy the mischief which was the focus of the 2018 Act. In Lachaux v Independent Print Ltd [2020] AC 612 at [13] Lord Sumption identified presumptions which apply in such circumstances namely:

The whiplash reform programme was designed to reduce the amount of damages recoverable for the whiplash injury in order to discourage false or exaggerated whiplash claims. The compromise effected by the legislation derogates from the principle of 100% compensation pursuant to the common law. An award pursuant to the legislation is significantly lower than a common law assessment of damages made pursuant to the Judicial College Guidelines.

Concurrent with the objective of reducing damages, the reforms seek to reduce the costs associated with claiming damages for whiplash injuries by introducing a bespoke portal process which is intended to provide a mechanism for the swift and straightforward resolution of claims falling within its scope.

At an assessment of damages hearing pursuant to the 2018 Act, the court retains a discretion as to whether to determine the case on the papers or by way of an oral hearing. The time given for such a hearing is limited, taking place as it does during the district judge’s daily list. The time listing for the cases of Briggs and Rabot was 45 minutes each. At the hearing evidence is generally limited to that contained within the Court Pack. In Briggs and Rabot no oral evidence was received by the court.

Pursuant to sections 3(2) and 3(3) of the 2018 Act, the amount of damages for PSLA for the whiplash injury or injuries is the amount specified in the Regulations. The court’s role in assessing the appropriate figure for PSLA for a tariff injury is circumscribed by section 3(2) and, where appropriate, section 3(3), and by the Regulations. It is limited to an assessment of the duration of the whiplash injury save where the claimant seeks an uplift under Regulation 3. The award is based upon the duration of the symptoms regardless of the level of pain, suffering and loss of amenity actually suffered by a claimant.

Section 3(8) recognises the need for an assessment for an award of damages in respect of injuries additional to those suffered and contained within the section 3(2) or 3(3) injuries.

In such a mixed injury case, given the differing bases of the section 3(2), 3(3) (tariff) and s.3(8) (non-tariff) assessments, the court is required to carry out two separate assessments. The issue is how an assessment is to be made for PSLA which is concurrently caused by both the tariff and non-tariff injuries. In my view, the approach of the court begins from the premise that the focus of the 2018 Act and the Regulations is directed to whiplash injuries: they were not intended to and did not alter the common law assessment of non-whiplash injuries. Parliament is taken to have known the principle of full compensation and the quantification of the same at common law.

Neither section 3(8), nor any other provision of the 2018 Act, either expressly or by necessary implication provides that non-tariff injuries should be assessed by reference to anything other than common law principles. The words in section 3(8) that “Nothing in this section prevents….” indicate that it is open to the court, in a case where the claimant suffers injuries additional to those assessed pursuant to section 3 of the 2018 Act, to make an award that “reflects the combined effect of the person’s injuries”. I regard these latter words as critical to the court’s assessment upon common law principles in respect of any award pursuant to section 3(8). This is particularly so when the tariff award cannot be said to reflect full compensation for the person’s injuries assessed on common law principles.

An intrinsic part of a common law assessment in which more than one injury is sustained is, following Sadler, to step back and to assess whether the total award represents double counting or overcompensation. Such an approach is appropriate where both injuries are assessed pursuant to common law principles. In a case where one award is in respect of a tariff injury which has not been assessed pursuant to common law principles and thus represents a lower figure than would have been awarded had such an assessment been made, the court is faced with the difficulty of not knowing what, if any, allowance has been made in the tariff award for PSLA arising from a concurrent cause.

It is of note that the words in section 3(8) replicate the expression used by Pitchford LJ in Sadler when he stated that it is necessary to stand back from the compilation of the individual figures in considering whether the award for PSLA 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…”. That Parliament has used the same expression, in my view, adds weight to the contention that the approach to be taken pursuant to section 3(8) is that the award must reflect a common law assessment of the combined effect of all the PSLA which is the result of concurrently caused injuries in both the tariff and non-tariff awards subject only to the limits imposed by the section on the amount recoverable for the tariff injury. A factor in support of this approach is that in standing back, a court will be aware that it is only the non-tariff award which can be reduced.

Further, any fear of windfall damages is negated by the fact that Parliament has significantly depressed the value of PSLA for the tariff injury.

It follows that the approach of the court to an assessment of damages in respect of a tariff and non-tariff award where concurrently caused PSLA is present is that the court should:

The defendant’s approach would result in the claimant’s right to common law compensation for PSLA caused by the non-tariff injury where the whiplash injury is a concurrent cause being effectively extinguished. It would serve to extend the compass of the 2018 Act to the non-whiplash injury which is contrary to the stated purpose of the statute and not required by necessary implication. It would also have the effect of claimants being compensated in radically different amounts for their non-whiplash injuries depending upon whether a qualifying whiplash injury has been sustained. It could lead to a position where a claimant would not pursue a claim for whiplash injury as it would have the effect of reducing any award for compensation for the non-tariff injury. I regard such an approach as untenable. Accordingly, and for the reasons given and subject to the views of the Master of the Rolls and Stuart Smith LJ, I would dismiss the appeals in Rabot and Briggs.

As to the cross appeals: I am unable to find that the deduction made by the judge in Rabot was wrong in principle or unreasonable. Accordingly, and subject to the views of the Master of the Rolls and Stuart-Smith LJ, I would dismiss the cross appeal in Rabot.

In Briggs the judge’s adjustment resulted in a total figure which was lower than the assessment for the non-tariff injury. Given the fact that the tariff award was lower than an award assessed pursuant to common law principles, I regard the adjustment as too great. In my view a reduction of £340 to the non-tariff award, giving a total award of £3,500 would represent appropriate compensation for the injuries sustained. To this extent, and subject to the views of the Master of the Rolls and Stuart-Smith LJ, I would allow the cross appeal in Briggs.

I agree with the judgment of Nicola Davies LJ and the disposition of these appeals that she proposes. I add to her judgment only to explain why I am respectfully unable to agree with the judgment of the Master of the Rolls, which I have seen in draft.

The Master of the Rolls starts with an acceptance that the 2018 Act “removed certain claimants’ rights to full compensation for whiplash injuries, but not for other kinds of injury”; but he reaches the conclusion that “Parliament has legislated for the reduction of general damages for non-whiplash personal injuries in cases where whiplash injuries have been sustained, even though the statute does not appear specifically to be directed at non-whiplash cases.” (My emphasis). There is an obvious tension between these two statements. Since it is accepted that the 2018 Act does not remove any claimants’ rights to full compensation for other kinds of injury, the conclusion can only be supported if the terms of the statute effect the change by necessary implication and the consequential alteration to the common law was necessary and no more than necessary: see Lachaux at [13], cited by Nicola Davies LJ above. Neither of these requirements are satisfied in the present case. Put shortly, it was not necessary to affect the common law assessment of damages for non-whiplash injuries at all in order to effect the change in the assessment of damages for whiplash injuries, which were the sole subject and object of the 2018 Act.

The foundation for the conclusion appears to be the interpretation placed upon sections 3(1) and 3(2) of the 2018 Act in the Master of the Rolls’ first and second reasons. Specifically, reliance is placed upon the reference to “a case” rather than “a claim” in section 3(1). But once section 3(1) is read in full and in context, it seems to me that the reliance is misplaced.

Taken at their highest, the words in section 3(1) highlighted by the Master of the Rolls when viewed on their own and in isolation are no more than consistent with being applicable in a case where both whiplash and non-whiplash injuries have been suffered but no claim is made in respect of the qualifying whiplash. However, the words of section 3(1) should not be viewed on their own or in isolation. Once they are viewed in context with section 3(2), it is plain that sections 3(1) and 3(2) go together and are directed to cases where a claim in respect of “the whiplash injury or injuries” is made: “the whiplash injury or injuries” in section 3(2) are the whiplash injury or injuries referred to in section 3(1). Sections 3(1) and (2) say nothing, either expressly or by necessary implication, about the assessment of damages for other injuries, whether or not those other injuries give rise to overlapping (i.e. concurrently caused) symptoms or loss of amenities. They do not, in my judgment, support an argument that the Act has, without mentioning them, fundamentally altered the basis of assessment of damages for those other injuries. To the contrary, by their express terms, they are limited to the assessment of damages for qualifying whiplash injuries. No other provision of the 2018 Act either states expressly or necessarily implies that the statute has prescribed or affected the assessment of any part of the (full) compensation for other injuries.

If further support for this more limited interpretation of sections 3(1) and 3(2) were required, it is to be found in the clear statements of (political and) legal policy set out by Nicola Davies LJ at [3]-[6] above. It is also to be derived from the fact that, where the statute intends to refer to the assessment of damages for other injuries, it does so expressly: see section 3(8)

It follows that there is no violation of section 3(2) if a claimant asserts a claim for other injuries or to have them assessed by reference to common law principles. The only qualification under section 3(8) upon the assessment of damages in a case where a person claims in respect of both a qualifying whiplash injury and other injuries is that the overall award, while reflecting the combined effect of the person’s injuries shall be “subject to the limits imposed by [the Regulations made under section 3]”. The approach adopted by Nicola Davies LJ respects that qualification since no adjustment is made to the tariff award and there is no realistic scope for over-compensation.

For these reasons, which I take to be the same as those explained by Nicola Davies LJ in her judgment, there is no question of a claimant “circumventing” the Act by claiming for non-whiplash injuries but not for qualifying whiplash injuries. I agree with Nicola Davies LJ’s observation that the consequences that would follow if the defendants’ interpretation were to be adopted show that this approach is untenable. It is axiomatic that no person can be compelled to bring proceedings for injury or loss or damage caused by the tort of another, so that a person who was competent to litigate is entitled to decide who they would sue and what causes of action they would pursue against them, even if that choice impacts on the application of relevant limitation periods: see Shade v Compton Partnership [2000] PNLR 218 and Pawley v Whitecross Dental Care Ltd and another [2021] EWCA Civ 1827, [2022] 1 WLR 2577 at [32] and, more importantly, [52]. It is, to my mind, inconceivable that Parliament would have legislated in the terms of section 3 of the 2018 Act if its intention had been to undermine or remove this fundamental tenet of the common law as well as the right to a common law assessment of non-whiplash injuries. It is therefore beside the point, when assessing damages for PSLA for non-whiplash injuries, that Parliament has regulated the sums recoverable in respect of one or more qualifying whiplash injuries.

In the face of wording which is specific in applying only to damages for qualifying whiplash injuries and where all the contextual materials demonstrate that the (political and) legal policy motivating and underpinning the passing of the legislation was confined solely to the perceived mischief of excessive whiplash claims, it is not open to the Courts to extend the effect of the language of the 2018 Act so that, by a sidewind, it removes the right to a common law assessment of other injuries. If such a step is to be taken, it must be taken by Parliament. No doubt, if Parliament takes that step, it will legislate in clear terms that leave no doubt as to the scope of the alteration it wishes to make to the existing common law, just as (in my judgment) it has done in its alteration of the common law relating to the assessment of damages for PSLA for qualifying whiplash claims by the 2018 Act.

These two test cases have been leapfrogged from the County Court at Birkenhead to the Court of Appeal because they raise an important question as to the proper construction of section 3 (section 3) of the Civil Liability Act 2018 (the 2018 Act). The issues arise because the 2018 Act removed certain claimants’ rights to full compensation for whiplash injuries, but not for other kinds of injury. In many of the small claims covered by the 2018 Act, claimants often allege that they have sustained injuries in addition to whiplash.

Small whiplash claims are now generally initiated through a pre-action online portal known as the Official Injury Claim Service (the Whiplash portal), which was developed by the Motor Insurers’ Bureau. The Whiplash portal began on 31 May 2021, and is governed by the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents (now £5,000) (the protocol). It is accessible both by litigants in person and by represented parties, but the latest data shows that some 91% of claimants are actually represented. No costs are recoverable for the period up to the issue of formal court proceedings. Some 24,000 claims per month are currently being brought within the Whiplash portal. The protocol applies where a claimant who has suffered personal injuries, including but not limited to whiplash injuries, because of a road traffic accident (RTA) wishes to make a claim of not more than £5,000 for compensation for the injuries, and not more than £10,000 overall (see [2.1(1)] of the protocol).

District Judge Hennessy (the judge) adopted broadly the same approach to the assessment of the claimant’s damages for pain and suffering and loss of amenity in respect of whiplash and other injuries in each of these two cases (Rabot and Briggs). She determined the nature of each injury, valued the whiplash injury in in accordance with the tariff laid down by the Whiplash Injury Regulations 2021 (the Regulations) and valued the other injuries in accordance with the common law, added the two figures together, and then took a “step back exercising the type of judicial discretion that [j]udges have been doing over many years”, before reaching a final figure by making an appropriate deduction if any (see [38] in her judgment in Rabot and [61] in Briggs). In Briggs, the judge made clear that the deduction was to be made from the non-tariff damages, because the tariff damages were fixed.

The judge was avowedly applying [34] of Pitchford LJ’s judgment in Sadler v. Filipiak [2011] EWCA Civ 1728 (Sadler), where he had said:

In Rabot, the judge determined the tariff award for the whiplash injuries (8-10 months whiplash and 3 months travel anxiety) at £1,390, and the common law general damages for injuries to both knees at £2,500. Those two figures totalled £3,890, and “stepping back” the judge said that the “overall award [was] £3,100 to recognise the clear overlap on the basis of the medical evidence”. The judge determined at [41] that there was no loss of amenity attributable to the knee injuries alone.

In Briggs, the judge determined the tariff award for the whiplash injuries (9 months whiplash) at £840, and the common law general damages for injuries to left knee (6 months), right elbow (3 months), chest (2 months) and hips (1 month) at £3,000. Those two figures totalled £3,840, and “stepping back” the judge determined the overall award at £2,800. The judge determined at [64] that there was no loss of amenity attributable to the knee, elbow, chest and hip injuries alone.

It can be seen from these summaries of the findings that: (a) Rabot and Briggs were both cases in which there was no loss of amenity caused by the additional injuries that was not also caused by the whiplash, and (b) that the whiplash in each case was longer lasting that any of the other injuries.

Against this background, it was suggested in the course of oral argument that the case was really about whether, in cases of this kind, the damages allowed for pain and suffering and loss of amenity (PSLA) concurrently caused by both whiplash and other injuries are to be: (i) only that part of the tariff amount allowed for PSLA, or (ii) the part of the tariff amount allowed for PSLA and the amount allowed for PSLA by the normal common law compensation for the other injuries, or (iii) something in between adopting an approach of the kind employed by the judge. In essence, the defendants supported the first solution, the interveners supported the second solution, and the claimants supported the second, alternatively the third, solution.

I have concluded that the wording of section 3 of the 2018 Act leads inexorably to the conclusion that the first solution is the correct one as a matter of statutory construction. The effect of this conclusion is that Parliament has legislated for the reduction of general damages for non-whiplash personal injuries in cases where whiplash injuries have been sustained, even though the statute does not appear specifically to be directed at non-whiplash cases.

Section 3 of the 2018 Act provides as follows:

Damages for whiplash injuries

(1)

This section applies in relation to the determination by a court of damages for pain, suffering and loss of amenity in a case where—

(a)

a person (“the claimant”) suffers a whiplash injury because of driver negligence, and

(b)

the duration of the whiplash injury or any of the whiplash injuries suffered on that occasion—

(i)

does not exceed, or is not likely to exceed, two years, or

(ii)

would not have exceeded, or would not be likely to exceed, two years but for the claimant’s failure to take reasonable steps to mitigate its effect.

(2)

The amount of damages for pain, suffering and loss of amenity payable in respect of the whiplash injury or injuries, taken together, is to be an amount specified in regulations made by the Lord Chancellor. …

(8)

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 pain, suffering and loss of amenity that reflects the combined effect of the person’s injuries (subject to the limits imposed by regulations under this section).

(9)

Nothing in this section prevents the amount of damages payable being reduced by virtue of section 1 of the Law Reform (Contributory Negligence) Act 1945.

The Regulations were made under section 3(2) setting out the tariff for whiplash damages based on their duration. Regulation 2 provides as follows:

2.—(1) Subject to regulation 3 —

(a)

the total amount of damages for pain, suffering and loss of amenity payable in relation to one or more whiplash injuries, taken together (“the tariff amount” for the purposes of section 5(7)(a) of the Act), is the figure specified in the second column of the following table; and

(b)

the total amount of damages for pain, suffering and loss of amenity payable in relation to both one or more whiplash injuries and one or more minor psychological injuries suffered on the same occasion as the whiplash injury or injuries, taken together (“the tariff amount” for the purposes of section 5(7)(b) of the Act), is the figure specified in the third column of the following table—

Duration of injury	Amount – Regulation 2(1)(a)	Amount – Regulation 2(1)(b)
Not more than 3 months	£240	£260
More than 3 months, but not more than 6 months	£495	£520
More than 6 months, but not more than 9 months	£840	£895
More than 9 months, but not more than 12 months	£1,320	£1,390
More than 12 months, but not more than 15 months	£2,040	£2,125
More than 15 months, but not more than 18 months	£3,005	£3,100
More than 18 months, but not more than 24 months	£4,215	£4,345

The claimants and the interveners argued forcefully that the defendants’ solution would have the unintended consequence of depriving claimants of full compensation for their other injuries. They submitted that the principle of full compensation was applicable to damages for PSLA. As Lord Blackburn had said in Livingstone v. Rawyards Coal Co (1880) 5 App Cas 25 (Livingstone) at page 39: “where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured … in the same position as he would have been in if he had not sustained the wrong …”. Lord Briggs said at [23] in Attorney General of St Helena v. AB [2020] UKPC 1 (AG of St Helena) that “[a]n important part of the purpose of PSLA damages is that they should reflect what society as a whole considers to be fair and reasonable compensation for the victim”. They submitted that the principle of double recovery only applied where there was full compensation, and the 2018 Act provided for much reduced, rather than full, compensation. Moreover, Parliament had not legislated to reduce the damages payable for non-whiplash injuries. The defendants’ solution would lead to highly undesirable practical consequences, which would require detailed analysis of the causal consequences of every whiplash claim, which was specifically not required by the 2018 Act, which operated on a simple parameter of how long the whiplash injury and any accompanying minor psychological injury lasted. The latest data showed that 67.3% of whiplash claims were, in fact mixed injury claims.

In my view, the key to this question lies in the wording of section 3.

First, section 3(1) provides that “[t]his section applies in relation to the determination by a court of damages for pain, suffering and loss of amenity in a case where … a person … suffers a whiplash injury because of driver negligence …” (emphasis added). Section 3(1) does not say that it applies where a person makes a claim for PSLA damages for a whiplash injury. The provisions, therefore, would at first sight have to be considered if the claimant suffered whiplash injury whether or not that person claimed for it, and even if that person chose to claim only for additional injuries in an attempt to circumvent the legislation and increase their recovery.

Secondly, section 3(2) lays down that: “[t]he amount of damages for pain, suffering and loss of amenity payable in respect of the whiplash injury … is to be” (emphasis added) the amount in the Regulations. In cases, such as these, where the judge has made the specific finding on the evidence that the additional injuries did not cause any loss of amenity that was not caused also by the whiplash injuries, the statute therefore provides that the amount of damages for the loss of amenity caused by the whiplash is the tariff amount. Once that has been paid, the claimant cannot claim compensation for the same loss of amenity caused also by another injury on a different common law basis. The statute has dictated the compensation that is to be paid for that very loss. Seeking more would violate section 3(2). It is not, therefore, accurate to say that the statute only legislated for compensation for whiplash and cannot affect the common law compensation for other injuries. It can affect that compensation in the specific circumstances of these cases, where the PSLA or parts of it has concurrent causes. The damages claimed for the pain and suffering caused by the knee injury in Rabot and by the knee, elbow, chest and hip injuries in Briggs are, of course, not covered by the statutory provision limiting the amount of damages for the PSLA caused by the whiplash, because that pain and suffering caused by those injuries was not the same as the pain and suffering caused by the whiplash.

Thirdly, nothing in section 3(8) overrides the clear provisions of sections 3(1) and (2). All section 3(8) says is that: “[n]othing in this section prevents a court [in an additional injuries case] awarding an amount of damages for pain, suffering and loss of amenity that reflects the combined effect of the person’s injuries (subject to the limits imposed by regulations under this section)”. An award on any of the three bases proposed by the parties would reflect “the combined effect of the person’s injuries”. The question is how it should do so, and section 3(8) gives no assistance in that regard, save to say in parentheses that the limits in the Regulations must be respected. In my judgment, the limits in the Regulations are, in fact, only respected if the defendants’ solution is adopted. There will of course be cases where, despite the concurrent causes, a higher than tariff award for loss of amenity will be required. That would, for example, be the case where the non-tariff injury persisted longer than the whiplash injury, which was not the case here.

Fourthly, I should make it clear that I do not think that the judge’s approach does respect the limits in the Regulations for the first and second reasons I have given above. It is unprincipled to make an allowance to reduce the common law damages for PSLA for the other injuries to take into account the overlap between the consequences of the whiplash and the consequences of the other injuries, when the statute has provided for the level of compensation for some of those consequences. The principled solution is to apply the statute and then work out what consequences of the other injuries are not caused by the whiplash as well, and assess the proper common law compensation for those additional consequences – in these cases the pain and suffering caused by the other injuries.

Fifthly, as I have already indicated, the claimant cannot get round the tariff by failing to claim for the whiplash and claiming only for the other injuries, because the wording of section 3(1) means that the limitation still applies if a whiplash injury is suffered. That may produce difficulties where attempts are made to circumvent the effects of the statute, but every solution has some consequences that may prove practically problematic.

Sixthly, the solution proposed by the defendants does not give undue preference to the whiplash injury as suggested by the claimants. The same result is reached even if you start by assessing the damages for the other injuries, because there has to be a deduction from that assessment to reflect the concurrently caused consequences of the whiplash injuries where the statute mandates tariff levels of compensation. It does not normally matter that the court does not know what the tariff sum includes for the elements of PSLA, because the deduction is in respect of the common law assessment for, in the example of these cases, the loss of amenity already compensated by the tariff amount. It could matter in the example I have given at the end of [65] above. But in such a case, the court would need to undertake a variant of the “standing back” exercise advocated in Sadler.

Finally, the solution adopted by the judge and favoured by the majority in this court might, in some cases, achieve the result dictated by the 2018 Act, but does not seem to me to be adequately scientific. The “standing back” exercise in Sadler was intended to remove the element of double counting where all the injuries were to receive full compensation. Parliament has directed in section 3(2) that damages for PSLA in respect of whiplash injuries are not to be awarded on the 100% principles enunciated in Livingstone and AG of St Helena. The tariff awards laid down by Parliament for the same concurrently caused losses (for example, the loss of amenity in these cases) cannot be topped up by using the device of claiming also in respect of other injuries.

In conclusion, therefore, I would allow the defendants’ appeal. I would have sent the cases back to the judge to assess damages on the basis of this judgment. Since the majority disagree, their judgment will prevail.