Once again, a member of Atlantic Chambers, Shannon Eastwood, successfully appeared on behalf of the Claimants in the Supreme Court case of Hassam v Rabot [2024] UKSC 11 led by Benjamin Williams KC and instructed by Robert James solicitors.

In a unanimous judgment (available here) the Supreme Court has upheld the majority of the Court of Appeal and confirmed that the tariff award for whiplash injuries under the Civil Liability Act 2018 is to be incorporated into the ‘standard common law approach’.

Helpfully, the Court provided step by step instructions where the claimant is seeking damages for pain, suffering and loss of amenity (PSLA) in respect of both whiplash injuries covered by the 2018 Act and non-whiplash injuries (i.e. mixed injury cases). The judge 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.”

The totality adjustment set out above is to be taken in accordance with the principles in Sadler v Filipiak [2011] EWCA Civ 1728. In practice, this means that there will usually be a small deduction to reflect any overlap of pain, suffering and loss of amenity between the two awards. This may vary depending on the case and in Sadler Pitchford LJ described the detailed approach as follows :

“It is … always necessary to stand back from the compilation of individual figures, whether assistance has been derived from comparable cases or from the [Judicial College] guideline advice, to consider whether the award for pain, suffering and loss of amenity 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, on the contrary, should be smaller than the sum of the parts in order to remove an element of double counting. In some cases, no doubt a minority, no adjustment will be necessary because the total will properly reflect the overall pain, suffering and loss of amenity endured. In others, and probably the majority, an adjustment and occasionally a significant adjustment may be necessary.”

The Supreme Court’s decision provides a common-sense approach to the assessment of damages by integrating the tariff awards into the existing common law system. This means that any non-whiplash injuries should continue to be assessed in the usual way with reference to the Judicial College Guidelines and comparable quantum cases. In doing so, the Court reaffirmed the longstanding presumption that legislation affects the common law to the minimum extent necessary.

The Court rejected the Defendants argument that any concurrent PSLA between the whiplash and non-whiplash injuries should be treated as entirely compensated by the tariff award and the court should only award a modest solatium for any PSLA caused

exclusively by the non-whiplash injuries. In practice, the Defendants were arguing that this would mean that the 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. In other words, they were arguing that the additional incidence of a whiplash injury meant that you got less money than if you didn’t’ sustain a whiplash injury at all. Thankfully, the Court rejected the ‘bizarre” and “absurd” consequences of this argument, and forensically dissected the dissenting decision of the Master of the Rolls, Sir Geoffrey Vos, in the Court of Appeal below.

The industry is likely to welcome this definitive guidance after three years of uncertainty since the introduction of these reforms. There are approximately 250,000 whiplash cases proceeding through the OIC Portal each year (a significant reduction from the high watermark of 650,000 RTA personal injury claims in 2017/18) and approximately two-thirds of those claims involve mixed injury cases. With a quick turnaround of just one month since the hearing and a unanimous judgment the Supreme Court clearly recognised the importance of providing clarity and certainty to the industry.

This case demonstrates once again that Atlantic Chambers continues to be at the vanguard of the most pressing legal matters and our members are well positioned to assist solicitors with any difficulties in navigating these reforms. In particular, the recent extension of the fixed costs regime to all cases up to £100,000 continues to cause turbulence in a market that has seen extensive consolidation in recent years and these latest reforms will have a profound effect on the conduct of this litigation generally. Atlantic Chambers will be hosting a seminar touching upon such matters in the summer so please look out for booking details in due course. In the meantime, if you wish to discuss these matters with Shannon, or any other member of Chambers, the clerks can be contacted on 0151 236 4421.