Personal injury lawyers have secured a measured win in the battle to claim extra damages for non-whiplash injuries.

The Supreme Court today dismissed insurers’ appeals in the rolled-up cases of Hassam and another v Rabot and another in a long-running dispute over so-called hybrid claims.

The decision means that litigants using the Official Injury Claim portal for low-value RTA claims can be compensated for bodily injuries as well as for soft tissue injury - although the court must still decide if deductions should be made to avoid double payments for the same consequences.

The Civil Liability Act 2018 had implemented a tariff for whiplash injuries but the government had left open the issue of other injuries, which were not subject to any tariff. The expectation was that the court would rule on whether compensation could be claimed for each injury separately, culminating in today’s ruling.

The appeal arose from two claims in the county court at Birkenhead, where the district judge had held that the proper approach was to determine the nature of each injury, assess the compensation for each injury and add these values together.

The Supreme Court agreed with the Court of Appeal in finding that the pain, suffering and loss of amenity aspect of compensation in non-tariff disputes must be assessed on common law principles.

Lord Burrows, giving the lead judgment, said at the outset that while the sums involved were small, thousands of cases were potentially affected by this decision. The OIC data for the last quarter of 2023 showed that mixed injury claims for whiplash and non-whiplash accounted for 43,159 cases (two-thirds of the total).

Insurers submitted that separate compensation for the non-whiplash injury should only be added if the claimant could establish it was different the to pain, suffering and loss of amenity covered by the whiplash injury.

In their primary case, the claimants and intervenors asked for the non-whiplash injury compensation to simply be added to the tariffed amount. They accepted as a secondary case that you could add the two but make deductions to reflect any overlap – as the county court had originally opted for.

District Judge Hennessy had assessed the whiplash injuries in Rabot at £1,390 and the common law damages for knee injuries at £2,500. Applying the reasonable deduction approach, overall damages were set at £3,100.

The Supreme Court dismissed entirely an approach advocated by master of the rolls Sir Geoffrey Vos in his dissenting judgment in the Court of Appeal. Vos had wanted a ‘principled’ and ‘scientific’ approach to treating injuries as being concurrent, but Lord Burrows said it would be complex to apply and could create the ‘bizarre consequence’ that claimants would get lower damages than if they had just claimed for non-whiplash injuries.

Burrows said it was ‘untenable’ to submit that there could never be a problem of double recovery and that without any deductions, this would ignore the elements of the claim that were overlapping.

‘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,’ he added. ‘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.’

Responding to the decision, Sue Brown, chair of the Motor Accident Solicitors Society, which intervened in the case, said: 'While the level of tariff damages remains far from fair, claimants can now be confident in recovering fair compensation for the non-whiplash injuries they sustain in low value motor accident claims.

 'With uncertainty and delays having plagued very many claimants waiting for a fairer settlement following motor accidents, we now hope that the judicial system can begin working through the backlog of cases and that justice can finally be dispensed.'

 

This article is now closed for comment.