Important decision for Personal Injury Claims from the Supreme Court

In an important decision for people who have been injured in road traffic accidents, the Supreme Court has dismissed the appeal of the Defendants, and the Claimants’ cross-appeal, from the Court of Appeal in the case of Hassam and another (Appellants) v Rabot and another (Respondents) [2024] UKSC 11

The full judgment can be found here https://www.supremecourt.uk/cases/uksc-2023-0025.html

The argument was about how injured road users should be compensated when they suffered both whiplash injuries and also non-whiplash injuries, for example, a soft tissue injury to the knee or elbow.

The Supreme Court is the highest appeal court in England and Wales and the case was an appeal from the decision of the Court of Appeal.

The result is that anyone who suffers both a whiplash injury and also another injury which is not a whiplash injury, in a road traffic accident will recover the set tariff amount for their whiplash (usually a very low figure) but also reasonable compensation for their other soft tissue injury, subject to a deduction for the overlap in symptoms between the 2 injuries.

What is a Tariff Whiplash injury?

After 31st May 2021, anyone who suffers a whiplash injury lasting up to 2 years whilst an occupant in a motor vehicle involved in a road traffic collision has had their compensation set by tariff figures introduced by the Government, namely the Whiplash Injury Regulations 2021.

A whiplash injury is defined as a soft tissue injury to the neck, back or shoulder not exceeding 2 years in duration.

To whom does the Whiplash Tariff apply?

Everyone, except for vulnerable road users. Vulnerable road users are defined as where the claimant was –

(a) using a motor cycle;
(b) a pillion passenger on, or a passenger in sidecar attached to, a motor cycle;
(c) using a wheel chair, a powered wheelchair or a mobility scooter;
(d) using a bicycle or other pedal cycle;
(e) riding a horse; or
(f) a pedestrian;

Does it affect other types of accident?

No, this decision only affects people who suffer an injury in a road traffic accident and who are not vulnerable road users. It does not affect accidents at work or accidents in a public place.

How much is the Whiplash tariff?

In short, not very much. As Lord Burrows, giving the lead judgment, notes at paragraph 2 of the judgment in Hassam v Rabot, the greatest difference between the old common law approach and the new whiplash tariff is at the lower end of the scale, “The tariff amount for a whiplash injury of that duration [up to 3 months] is £240 (or £260 if there was additional minor psychological injury) compared to common law damages (as set out in the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (“the Guidelines”), 16th ed (2021)) of £2,450.”

So if you had an accident whilst driving your car in May 2021 and suffered a 3 month whiplash injury, you might recover £2,450, whereas if you had the same accident in June 2021, you would receive £240.

Lord Burrows continues “The lowest percentage reduction is where the duration of the whiplash injury is for 18 to 24 months. The tariff amount for a whiplash injury of that duration is £4,215 (or £4,345 if there was additional minor psychological injury) compared to a damages bracket, at common law, of £4,350 to £7,890.” That is still a significant reduction on the maximum likely to be recovered for a 2 year injury before the new regulations and the set amount recovered now.

All of the figures for the tariff can be found here https://www.legislation.gov.uk/ukdsi/2021/9780348220612

Why were the whiplash tariffs brought in?

It was a policy decision by the Government at the behest of insurance companies who were sick of paying out money to people injured by their policyholders instead of dividends to their shareholders. The Government decided that there were too many fraudulent and exaggerated claims, so, instead of dealing with the allegedly fraudulent and exaggerated claims and those who made them, they decided to effectively stop people claiming for whiplash injuries.

In return for the Government introducing these reforms, the insurers promised reductions in people’s car insurance premiums. The law changed in 2021. We will let people who buy car insurance judge whether the promised reductions have materialised..

What do the Regulations say about non-whiplash soft tissue injuries?

Nothing. In a measure of how well thought out the regulations were, the Government decided that the courts could sort out what happened when somebody had a whiplash injury and a non-whiplash injury and how those claimants were compensated.

What was the argument?

The Defendant’s argument is outlined at paragraph 7 of the Supreme Court judgment, “The first approach, advocated by the defendants (the appellants in these appeals), is that one should first take the tariff amount laid down in the 2021 Regulations. One should 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 (ie different) PSLA. This approach therefore envisages a build up from the tariff amount and requires the claimant to identify with some precision any different PSLA caused by the non-whiplash injury. This was the approach accepted by Sir Geoffrey Vos MR in his dissenting judgment in these two test cases in the Court of Appeal: [2023] EWCA Civ 19, [2023] KB 171, paras 50-70.”

So, the insurance companies advance the dissenting judgment of Sir Geoffrey Voss, Master of the Rolls from the Court of Appeal decision on this and they only want Claimant’s to get any more than the whiplash tariff figure, even if they have suffered other injuries, if they can show that it caused different pain and suffering to the whiplash.

“The second approach is advocated as their primary case by the claimants and, as their sole case, by the interveners (who are the Association of Personal Injury Lawyers and the Motor Accident Solicitors Society). According to this approach, one should 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.”

So, effectively, the Claimant should recover the full whiplash tariff and then the full amount of common law damages payable for the separate injury without making any reduction for overlap of symptoms. This would seem to contradict the common law position which has long accepted that there needs to be a “standing back” to consider whether individual awards added together over (or in rare cases under) compensate a Claimant.

There was a 3rd approach which was the Claimant’s secondary case (i.e. if the court didn’t like the Claimant’s primary case, the Claimant argued the court should adopt approach 3 instead) and this was the approach taken by the majority of the Court of Appeal in the test cases (Master of the Rolls, Sir Geoffrey Voss dissenting and accepting the first approach) namely, that (per paragraph 9 the judgment),

“One should first add together the tariff amount for the whiplash injury and the common law damages for PSLA for the non-whiplash injury. Then one should stand back to consider whether to make a deduction to reflect any overlap between the two amounts (ie where both amounts cover the same PSLA).”

What did the Supreme Court decide?

The Supreme Court, perhaps unsurprisingly, preferred the 3rd approach, that outlined by the Court of Appeal. They helpfully laid out a step by step approach for anyone valuing mixed whiplash tariff and non-whiplash tariff injuries, as follows at paragraph 52 of Lord Burrows’ judgment:
“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.

Conclusion

Insurers will no doubt renew the battle to end claims for soft tissue injuries following road traffic accidents by campaigning for the Government to change the law yet again. Claimants, meanwhile, will now be reassured that they will continue to receive reasonable compensation for non-whiplash injuries following road traffic accidents.