SUPREME COURT JUDGMENT TODAY: WHIPLASH TARIFF INJURIES AND COMMON LAW DAMAGES: HOW SHOULD THE COURT DEAL WITH “MIXED” CLAIMS

In Hassam & Anor v Rabot & Anor [2024] UKSC 11 the Supreme Court rejected the defendant’s appeal against the way in which damages are assessed. It upheld the the majority view of the Court of Appeal that the Civil Liability Act 2018 did not impact upon the assessment of damages for pain and suffering to be awarded for non-whiplash injuries.

THE CASE

The Court  of appeal considered the issue of “mixed” claims.  “Whiplash” injuries in road traffic cases are now subject to a statutory tariff, which is lower than common law damages for the same injury.  There was considerable debate as to the approach the courts should take when a claimant suffered a “whiplash” injury and an injury that fell outside the scope of the tariff. Two test cases were remitted directly from the county court to the Court of Appeal.

THE JUDGMENT OF THE MAJORITY IN THE COURT OF APPEAL

The majority view was that the Regulations could not be taken to reduce common law damages.  The appropriate approach of the courts was to (i) assess damages under the tariff; (ii) assess common law damages for the non-whiplash injuries; (iii) take an “overview” as to the award – but taking into account that the tariff award is lower than common law damages would have been.

THE DEFENDANTS’ UNSUCCESSFUL APPEAL TO THE SUPREME COURT

The defendants appealed and the claimants cross-appealed.  Both appeals were rejected.  The Supreme Court essentially upheld the majority view in the Court of Appeal.

THE CORRECT APPROACH SET OUT BY THE SUPREME COURT

10. The correct approach step-by-step

1. 51. Having explained why the third approach is the correct approach, including explaining why the other two approaches are flawed, it may be helpful to those applying this judgment to spell out precisely what that correct approach requires. In this respect, I am confirming and filling out what Nicola Davies LJ said at para 38 of her judgment (see para 32(vi) above).

1. 52. Where the claimant is seeking damages for PSLA in respect of whiplash injuries (covered by the 2018 Act) and non-whiplash injuries a court should:

(i)                Assess the tariff amount by applying the table in the 2021 Regulations.

(ii)             Assess the common law damages for PSLA for the non-whiplash injuries.

(iii)           Add those two amounts together.

(iv)           Step back and consider whether one should make an adjustment applying Sadler. The adjustment (which in this context will almost always be a deduction rather than an addition) must reflect, albeit in a rough and ready way, the need to avoid double recovery for the same PSLA. The court must respect the fact that the legislation has laid down a tariff amount for the whiplash injuries that is not aiming for full compensation: in that respect, the Sadler adjustment is a slightly different exercise than if one were dealing entirely with the common law assessment of damages for multiple injuries.

(v)              If it is decided that a deduction is needed that must be made from the common law damages.

(vi)           However, and this is what Nicola Davies LJ described as the “caveat”, the final award cannot be lower than would have been awarded as common law damages for PSLA for the non-whiplash injuries had the claim been only for those injuries.

53. Finally, I should add for completeness that, although not in issue in these appeals, where the exceptionality requirement applies (see paras 22 and 24 above), the tariff amount being assessed at the first step (see para 52(i)) may be increased by up to 20%.