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The Supreme Court has handed down judgment in the conjoined appeals of Charlotte Victoria Hassam & Anor. v Yoann Samuel Rabot & Anor. which clarifies the approach to be taken for the assessment of damages following whiplash reforms.

The Civil Liability Act 2018 ('CLA 2018') in conjunction with the Whiplash Injury Regulations 2021 ushered in reforms to whiplash claims resulting from road traffic accidents which came into force on 31st May 2021.

The reforms introduced tariffs for whiplash injuries which substantially reduced the amount recoverable in damages for whiplash injuries. The 17th edition of the Judicial College Guidelines gives an upper damages figure of £2,990 for a neck injury where there is a complete recovery within three months. By way of comparison, the tariff gives a figure of £240 (ignoring any psychological injury and any uplift where the severity of the injury leads to exceptional circumstances) where a whiplash injury is claimed following the reforms.

Furthermore, the reforms also brought in changes to the small claims track limits for RTA cases such that claims for damages for injury that did not exceed £5,000 would be allocated to the small claims track. Claims which meet the criteria are now dealt with via the Official Injury Claim Service Portal ('the OIC Portal') rather than the MoJ Portal which continues to be the method for fast-track RTA injury claims.

The tariffs however do not apply to all soft tissue injuries sustained in RTAs. They only apply to whiplash injuries which are defined by s1 of CLA 2018 as, inter alia, "a sprain, strain, tear, rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder or an injury of soft tissue associated with a muscle, tendon or ligament in the neck, back or shoulder. "

It is clear from the definition that not all soft tissue injuries sustained in RTAs are covered by the tariffs. The question then arises as to how to value 'mixed' claims which contain both whiplash and non-whiplash injuries sustained by the same claimant in the same accident.

Figures from the OIC suggest that approximately two-thirds of claims submitted to the OIC Portal contain mixed injury claims. It is therefore important for claimants, defendant insurers and legal practitioners to understand how these mixed injury claims are to be valued. Insurers have therefore run a series of test cases to determine how these mixed injury claims should be valued.

The approach favoured by defendant insurance companies is that one should first take the tariff amount for the whiplash injury and only add any non-overlapping PSLA from the non-whiplash injuries (approach 1).

Unsurprisingly, claimants favoured a different method whereby the whiplash and non-whiplash injuries are assessed independently and simply added together (approach 2). Alternatively, claimants argued that one should add the two together and then consider whether any deduction should be made for overlapping PSLA, but that any such deduction should not fall below the award which would have been made had the non-whiplash injury been made in isolation (approach 3).

The issue went before District Judge Hennesey at first instance in the claim of Rabot v Hassam. The learned judge added the tariff and non-tariff injuries together before making a reduction for what was a "clear overlap" between the PSLA to the tariff and non-tariff injuries, essentially applying approach 3.

There was a further first instance decision in the case of Briggs v Laditan, again before DJ Hennesey, in which the learned judge again added together the tariff and non-tariff injuries before making a deduction for the overlap of injuries. DJ Hennesey additionally found that any deduction needs to come from the non-tariff injury given that the tariff injury was fixed by statute. The result of the overlap being deducted from the non-tariff side of the award was that the overall award was less than the non-tariff injury in isolation.

Defendants in the two cases appealed on the basis that approach 1 should have been followed. The Claimant's also appealed on the basis that approach 2 should be followed or, alternatively, that approach 3 should be followed albeit with a less severe reduction for overlapping PSLA.

The two test cases went before the Court of Appeal in the combined appeals of Charlotte Victoria Hassam & Anor. v Yoann Samuel Rabot & Anor. Judgment was given in January 2023 with the majority deciding in favour of approach 3. The main reasoning behind the decision was that there was nothing in CLA 2018 which required the approach to the valuation of common law damages (i.e. the non-whiplash injury) to be changed, and that the purpose of the legislation was to combat excessive whiplash claims.

Sir Geoffrey Vos MR gave a dissenting judgement in favour of approach 1 in which he was of the view that a claimant cannot claim more compensation than the tariff amount for concurrent PSLA from non-whiplash injuries.

The test cases were then appealed to the Supreme Court and were heard on 20th February 2024. Approach 1, which was favoured by the Master of the Rolls, was rejected on the basis that there was nothing in the legislation to indicate that the scope of the reform of damages extended to non-whiplash injuries. Furthermore, the Supreme Court was of the view that if approach 1 was adopted then it could possibly result in a claimant ending up with less in damages than if the claimant had sought damages for non-whiplash injuries alone.

The second approach was rejected on the basis that it could lead to double recovery if no discount was made for overlapping PSLA between tariff and non-whiplash injuries.

The Supreme Court approved approach 3 citing s3(8) CLA 2018 which stated, "Nothing in this section prevents a court, in a case where a person suffers an injury or injuries in addition to an injury or injuries to which regulations under this section apply, awarding an amount of damages for pain, suffering and loss of amenity that reflects the combined effect of the person's injuries (subject to the limits imposed by regulations under this section)." The Court found that approach 3 was the correct interpretation of the statutory language and that it also supported the purpose of the legislation.

In summary, the Supreme Court decided that the correct approach to be adopted in mixed injury case was:

1. Assess the tariff amount
2. Assess the common law damages for the non-whiplash injuries
3. Add the two figures together
4. Consider whether any adjustment needs to be made for overlapping PSLA between the tariff amount and non-whiplash injuries
5. Any deduction needs to be made from the common law damages
6. The final award cannot be lower than would have been awarded as common law damages if the non-whiplash injury had been made in isolation.

Given the decision of the Supreme Court it therefore seems that, with the proliferation of mixed injury claims in the OIC, the resulting reduction in the amount of damages in RTA claim will not be as significant as some may have hoped when the government first announced its intention to reform whiplash claims.

For more information contact Warren Smethurst in our Insurance department via email or phone on 01619 180007. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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