Hassam and another v Rabot and another [2024] UKSC 11

The Supreme Court addressed how to calculate damages for pain, suffering and loss of amenity where a claimant suffers both whiplash and non-whiplash injuries in the same road traffic accident. The Court upheld the approach of adding the statutory tariff amount for whiplash to common law damages for non-whiplash injuries, then making a deduction to avoid double recovery.

Facts

These appeals arose from two road traffic accident claims where the claimants suffered both whiplash injuries (subject to the reduced statutory tariff under the Civil Liability Act 2018 and Whiplash Injury Regulations 2021) and non-whiplash injuries (assessed at common law). In Rabot v Hassam, the claimant suffered whiplash injuries to neck and back, plus soft tissue injuries to both knees. In Briggs v Laditan, the claimant suffered whiplash injuries to neck and back, plus soft tissue injuries to elbow, chest, knee and hips. The question was how to assess total damages for concurrent pain, suffering and loss of amenity (PSLA) caused by both types of injury.

The Three Approaches

Three approaches were considered: (1) the defendants’ approach – start with the tariff amount and add common law damages only for demonstrably different PSLA from non-whiplash injuries; (2) the claimants’ primary approach – simply add the tariff amount to full common law damages without any deduction; (3) the claimants’ secondary approach – add both amounts together, then apply a Sadler v Filipiak adjustment to avoid double recovery, with any deduction from the common law element only.

Issues

The central issue was the correct method for assessing damages for PSLA where a claimant suffers both whiplash injuries (subject to the statutory tariff) and non-whiplash injuries in the same accident. Specifically, how should concurrent PSLA be addressed to avoid double recovery while respecting Parliament’s intention to reduce whiplash damages without affecting common law damages for non-whiplash injuries?

Judgment

The Supreme Court unanimously dismissed the defendants’ appeals and the claimants’ cross-appeals, upholding the majority decision of the Court of Appeal. Lord Burrows delivered the sole judgment.

Statutory Interpretation

Lord Burrows emphasised that section 3(2) of the Civil Liability Act 2018 confines the tariff amount to PSLA “in respect of the whiplash injury or injuries” and does not extend to non-whiplash injuries. Section 3(8) indicates that common law principles should continue to apply to non-whiplash injuries, subject to respecting the statutory limits.

“The opening words, and the reference to an amount ‘that reflects the combined effect’, indicate that the statute is, in general, not departing from the standard common law approach to assessing damages for multiple injuries.”

The Correct Approach

Lord Burrows set out the step-by-step method: (i) assess the tariff amount for whiplash injuries; (ii) assess common law damages for non-whiplash injuries; (iii) add those amounts together; (iv) step back and consider whether a Sadler adjustment is needed to avoid double recovery; (v) any deduction must be from the common law damages; (vi) the final award cannot be lower than would have been awarded for the non-whiplash injuries alone.

“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.”

Rejecting the First Approach

The Master of the Rolls’ dissenting approach was rejected for four reasons: nothing in the legislation extends reform to non-whiplash injuries; the approach would require unrealistic precision in medical evidence; it would produce absurd consequences where claimants might receive less than for non-whiplash injuries alone; and it represented an unnecessary departure from established common law principles.

“Parliament can be presumed not to have altered the common law further than was necessary.”

Rejecting the Second Approach

The claimants’ primary approach of adding amounts without any deduction was also rejected as it would ignore the problem of double recovery for the same PSLA, contrary to fundamental principles of compensatory damages.

Implications

This decision provides essential guidance for the many thousands of road traffic accident claims involving both whiplash and non-whiplash injuries. It preserves the familiar Sadler approach to multiple injuries while respecting Parliament’s intention to reduce whiplash damages. The judgment confirms that the whiplash reform does not extend to reducing damages for non-whiplash injuries, and courts should continue to apply impressionistic adjustments rather than requiring precise medical delineation of concurrent PSLA. The decision also establishes an important floor: total damages cannot fall below what would be awarded for non-whiplash injuries alone, preventing the anomaly of claimants being worse off for having suffered additional injuries.

Verdict: The Supreme Court unanimously dismissed the defendants’ appeals and the claimants’ cross-appeals. The correct approach is to add the statutory tariff amount for whiplash injuries to common law damages for non-whiplash injuries, then apply a Sadler adjustment to avoid double recovery, with any deduction made from the common law damages only. The total award cannot be less than would have been awarded for the non-whiplash injuries alone.

Source: Hassam and another v Rabot and another [2024] UKSC 11