Hassam v Rabot [2024] UKSC 11

Article written by Peter Causton

How should a court assess damages for pain, suffering and loss of amenity (“PSLA”) in the tort of negligence, where the claimant suffered PSLA caused by both: (a) a whiplash injury (“WLI”) which comes within the scope of the Civil Liability Act 2018 (the “2018 Act”) and therefore attracts a fixed “tariff award”; and (b) a non-whiplash injury (“NWLI”) which does not attract a tariff award?

Today, the Supreme Court handed down its long awaited judgment in the case of Hassam v Rabot [2024] UKSC 11

The Supreme Court upheld the decision of the Court of Appeal as to the correct approach to follow when assessing “mixed injury”  cases.

This will come as a relief to Claimant representatives bringing claims for whiplash injuries and bring certainty to practitioners.

The question raised by the two test cases was simply put, what is the impact of the

whiplash reform on damages for pain suffering and loss of amenity (“ PSLA”) in respect of non-whiplash injuries suffered by the claimant in the same accident in which he or she suffers a whiplash injury? More specifically, what is the position on concurrent PSLA caused by both a whiplash injury and a non-whiplash injury?

As the Court pointed out, the sums at stake in the cases are small, but many thousands of cases are potentially affected by the decision on these appeals.

The Official Injury Claim Service’s statistics (Official Injury Claim, “Claims Data: for the period 1 October to 31 December 2023”) show that, in those three months, there were 62,557 whiplash claims (including claims for both whiplash and non-whiplash injuries) made using the OIC portal. 19,398 (30% of all the claims made using the OIC portal) were for whiplash injuries (plus minor psychological injuries) alone and 43,159 (66.7%) were for both whiplash and non-whiplash injuries.

Apparently many thousands of cases were stayed or put on hold pending the outcome of this appeal. The Master of The Rolls had dissented in the Court of Appeal, about the issue of whether PSLA could still be claimed for non whiplash injuries when a person was being awarded damages under the whiplash tariff. If his view had been upheld, damages would have been reduced in such cases.

Fortunately for Claimants and their representatives, the majority view prevailed and the Supreme Court found that the correct approach to follow is as follows:

“The correct approach step-by-step

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.

 

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%.”

The decision comes at the same time as the Judicial College Guidelines 17th edition has been published (although in fact the judgment in the Supreme Court quotes the old edition).

The average increase is approximately 22%. This means that a 3 month whiplash injury now starts at £2990 and for a 12 month neck or back injury a Claimant can now expect to recover up to £5,310, as opposed to £4350. This does seem to be a large increase and begs the question as to whether the Whiplash tariff figures under the Civil Liability Act will also be increased. There is currently a statutory consultation regarding the whiplash tariff which limits damages in whiplash cases to an artificially low figure in comparison to the Guidelines. The bracket for serious psychological injuries has increased dramatically.

All practitioners advising on personal injury cases should now refer to the 17th edition and take into account the Supreme Court’s decision outlined above in mixed injury cases.

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