Hassam (and another) v Rabot (and another) [2024] UKSC 11
Introduction
The Supreme Court recently considered the correct approach to quantum of general damages for PSLA in claims concerning whiplash and non-whiplash injuries.
This was significant as both accidents subject to appeal and cross-appeal involved whiplash and non-whiplash injuries in RTA scenarios and occurred post-May 2021. This meant they were subject to the introduction of the Whiplash Injury Regulations 2021 (SI 2021/642) (“the 2021 Regulations”) that exercised the power conferred on the Lord Chancellor by Part 1 of the Civil Liability Act 2018 to fix the amounts payable in respect of a whiplash injury and a whiplash injury with minor psychological injury.
Further, given that statistics referred from the Official Injury Claim Services’ for October to December 2023 list 62,557 whiplash claims (30% for whiplash injuries, 66.7% for both whiplash and non-whiplash injuries), this judgment will potentially impact thousands of cases in the future.
Legislation
Part 1 of the 2018 Act defines “whiplash injury” as whiplash injuries caused by negligent driving on a road or other public place in England or Wales, including a driver or passenger in a motor vehicle but excluding the same on a motorcycle.
Section 3 provides the powers referred to above in respect of injuries of 2 years of less.
The fixed amounts are in Regulation 2 of the 2021 Regulations (with recovery periods from not more than 3 months up to not more than 2 years).
The 2021 Regulations have been seen as controversial as they generally reduce the amount recoverable in whiplash claims in comparison to the position at common law (for example, if the duration of the whiplash injury is less than 3 months, common law per the guidelines provides a figure of £2,450 versus the tariff amount of £240 (or £260 with additional minor psychological injury).
Points on appeal
The questions for the court were:
- What is the impact of the whiplash reform on damages for 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?
The submissions made focussed on three possible approaches to dealing with the latter:
- First take the tariff amount laid down in the 2021 Regulations, then add the amount of common law damages for PSLA for the non-whiplash injury but only if the claimant establishes that the non-whiplash injury has caused non-concurrent (i.e., different) PSLA, per Sir Geoffrey Vos MR in his dissenting judgment in these two test cases in the Court of Appeal: [2023] EWCA Civ 19, paras 50-70 (as advocated by the defendants/appellants in these appeals).
- Add together the tariff amount for the whiplash injury and the amount of common law damages for PSLA for the non-whiplash injury without any consideration of whether there should be a deduction to avoid double recovery for the same loss (as the claimants/respondents’ first approach and the intervenors’ main approach).
- First add together the tariff amount for the whiplash injury and the common law damages for PSLA for the non-whiplash injury. Then stand back to consider whether to make a deduction to reflect any overlap between the two amounts (i.e., where both amounts cover the same PSLA), per the traditional approach to assessing damages for PSLA for multiple injuries in Sadler v Filipiak [2011] EWCA Civ 1728 (“Sadler” at para 34). However, any deduction must be made from the damages for the non-whiplash injury because the tariff amount is a statutory fixed sum; and the deduction should not reduce the overall amount of damages to be awarded below the amount that would be awarded for the non-whiplash injury alone, per the majority of the Court of Appeal in these two test cases at paras 1-49 and by District Judge Hennessey (without the caveat) at first instance (as the claimants/respondents’ second approach).
Decision and reasoning
The Supreme Court adopted the third approach as the correct one, and clarified the correct approach when the claimant is seeking damages for PSLA in respect of whiplash injuries (covered by the 2018 Act) and non-whiplash injuries as the following:
- Assess the tariff amount by applying the table in the 2021 Regulations.
- Assess the common law damages for PSLA for the non-whiplash injuries.
- Add those two amounts together.
- 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.
- If it is decided that a deduction is needed that must be made from the common law damages.
- 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.
In adopting the third approach and endorsing the majority of the Court of Appeal, the Supreme Court relied on the statutory interpretation and the purpose of the 2018 Act and the 2021 Regulations as supporting the third approach (at paras 36-41).
In rejecting the first approach, the Supreme Court did not accept there was anything in the words of the legislation to indicate the scope of the reform extended to damages for non-whiplash injuries, that such an approach would be complex to apply in contrast to considering concurrence in practice (adding further that a new level of detail for PSLA would be required in medical reports that would add to expense and would be contrary to the portal system which precludes oral medical evidence and cross-examination), that the approach would lead to the claimant ending up with a lower amount of damages for PSLA for both whiplash and non-whiplash than would have been awarded for the latter solely (and may in some cases be advised to bring a claim solely under the latter to avoid the tariff amount, and the possibility of a defendant asserting the presence of a whiplash injury and the claimant denying one), and that the approach was a significant departure from common law than the third (at paras 43-48).
The primary reason for rejecting the second approach was that contrary to compensatory principles, it ignores the issue of double recovery for the same loss and contradicts common law principles by not providing a Sadler deduction (the arguments advanced regarding the tariff amount not being full compensation, rather proportionate compensation, not being accepted) (at paras 49-50).
Conclusion
Overall, practitioners have generally been placed back in familiar territory when approaching quantum in claims for multiple injuries with reference to Sadler, though the slight distinctions in the approach outlined above should be noted in cases involving whiplash.
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