Hassam and Another v Rabot and Another [2024] UKSC 11
This judgment of the Supreme Court concerned Part 1 of the Civil Liability Act 2018 and the Whiplash Injury Regulations 2021 (SI 2021/642).
The act sets a statutory tariff for whiplash-type injuries. However, many claimants come before the courts having suffered other types of injury in addition to whiplash. As a matter of law, a court dealing with multiple types of injury would consider the various injuries and fix a particular figure as reasonable for each. It would then stand back and consider whether the award for pain, suffering and loss of amenity (PSLA) should be greater than the sum of the parts in order properly to reflect the combined effect of all the injuries upon the injured person’s recovering quality of life, or whether the award should be smaller than the sum of the parts in order to remove an element of double recovery.
The problem for the Supreme Court was the approach to be used where the injuries included a fixed tariff whiplash and other types of injury, which were subject to a common law assessment.
By way of example, in the first test case, the claimant suffered whiplash injuries to his neck and back. He also suffered non-whiplash soft tissue injuries to his knees. At an assessment hearing, the tariff amount for the whiplash injuries was assessed at £1,390 and the common law damages for PSLA for the knee injuries at £2,500. Adding those together produced an overall figure of £3,890. The court then stepped back, in order to reach a final figure, by making an appropriate deduction and identified a ‘clear overlap’ between the PSLA from the different types of injury. The overall award was therefore assessed down to £3,100.
Lord Burrows gave the lead judgment. The effect of the act and the regulations had been to significantly reduce the amount of damages payable for PSLA in respect of whiplash injuries caused by negligent driving. The regulations had imposed a tariff on such injuries, which varied only by reason of the duration of the injury.
There were three possible approaches for a court:
(1) The defendants had submitted that the court should first take the tariff amount laid down in the regulations, and then add the amount of common law damages for PSLA for the non-whiplash injury but only if the claimant could establish that the non-whiplash injury had caused a different type of PSLA.
(2) The claimants’ primary position was that 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.
(3) As a fallback, the claimants submitted that 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 – that is, where both amounts covered the same PSLA. However, any deduction should be made from the damages for the non-whiplash injury because the tariff amount was a statutory fixed sum.
Lord Burrows looked at the wording of section 3(2) of the act. This made it clear that the tariff amount was confined to damages for PSLA ‘in respect of the whiplash injury or injuries’. That wording did not extend the tariff amount in any way to PSLA in respect of non-whiplash injuries. Section 3(8) of the act also indicated that the statute was not, in general, departing from the standard common law approach to assessing damages for multiple injuries. The perceived ‘mischief’ that the act sought to address was false or exaggerated whiplash claims, not to reduce PSLA for other types of injury.
The first approach was impractical. It was unrealistic to imagine that PSLA from a whiplash injury would exactly match the PSLA from a non-whiplash injury, or to expect the claimant to prove that the PSLA was ‘different’. This would require a new level of detail in medical reports, which might prove either expensive or impossible. If the PSLA for both types of injury was exactly the same, then a claimant might end up with a lower amount of damages for PSLA in respect of both whiplash and non-whiplash injuries than would have been awarded for the non-whiplash injury alone. Consequently, a claimant would be incentivised to ignore the whiplash injury and to bring a claim just for the non-whiplash injury thereby avoiding the tariff amount.
The second approach contradicted the common law principles of assessing multiple injuries by not providing for a double recovery deduction. It was perfectly possible for a court to make a rational, albeit rough and ready rather than precise, deduction, which was necessary to avoid overlapping awards for the same PSLA and therefore to avoid double recovery.
The third approach was the correct one. Lord Burrows set out the following guidelines, where the claimant was seeking damages for PSLA in respect of whiplash injuries (covered by the act) and non-whiplash injuries. A court should:
(i) Assess the tariff amount by applying the table in the 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 the double recovery principle. The adjustment should reflect, albeit in a rough and ready way, the need to avoid double recovery for the same PSLA.
(v) If it was decided that a deduction was needed that must be made from the common law damages.
(vi) As a caveat, the final award could not 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.
Malcolm Johnson is legal director at Lime Solicitors, London
No comments yet