The Supreme Court determined how damages for pain, suffering and loss of amenity should be assessed when a claimant suffers both whiplash and non-whiplash injuries in the same road traffic accident. The Court upheld the ‘Sadler’ step-back approach, adding the statutory tariff for whiplash to common law damages for non-whiplash injuries, then making a rough deduction to avoid double recovery.
Background
These two conjoined appeals arose from road traffic accidents occurring after the Civil Liability Act 2018 (‘the 2018 Act’) and the Whiplash Injury Regulations 2021 (‘the 2021 Regulations’) came into force on 31 May 2021. Both statutory instruments significantly reduced damages for pain, suffering and loss of amenity (‘PSLA’) payable in respect of whiplash injuries caused by negligent driving, replacing common law assessment with a fixed tariff varying only by the duration of the whiplash injury.
In Rabot v Hassam, the claimant was a passenger in a vehicle struck from behind while stationary. He suffered whiplash injuries to his neck and back, as well as non-whiplash soft tissue injuries to both knees. In Briggs v Laditan, the claimant was the driver of a car hit from behind as he slowed at a roundabout. He suffered whiplash injuries to his neck and upper and lower back, together with non-whiplash soft tissue injuries to his left elbow, chest, left knee and hips.
At first instance, District Judge Hennessy assessed damages in both cases by adding the statutory tariff amount for the whiplash injuries to common law damages for PSLA for the non-whiplash injuries, and then ‘stepping back’ in accordance with the established common law approach in Sadler v Filipiak [2011] EWCA Civ 1728 to make a deduction reflecting overlapping PSLA. In Rabot, the tariff amount was £1,390, the common law damages for the knee injuries were £2,500, and the overall award after a Sadler deduction of £790 was £3,100. In Briggs, the tariff amount was £840, common law damages for non-whiplash injuries were £3,000, and the overall award after a deduction of £1,040 was £2,800.
Although the sums at stake were small, the Court noted the significance of the issue:
Although the sums at stake in these two cases are small, it is clear that many thousands of cases are potentially affected by the decision on these appeals.
The Issue(s)
The central question was: what is the correct approach to assessing damages for PSLA where a claimant suffers both a whiplash injury (to which the statutory tariff applies) and a non-whiplash injury in the same accident, and those injuries cause concurrent or overlapping PSLA?
Three approaches were advanced:
First approach (defendants/appellants)
Start with the statutory tariff amount. Then add common law damages for PSLA for the non-whiplash injury only to the extent the claimant establishes that the non-whiplash injury caused different, non-concurrent PSLA. This approach, favoured by Sir Geoffrey Vos MR in dissent in the Court of Appeal, required the claimant to identify with precision any PSLA not already covered by the tariff.
Second approach (claimants’ primary case and interveners)
Simply add together the tariff amount and the full common law damages for PSLA for the non-whiplash injuries, with no deduction for overlap or double recovery.
Third approach (claimants’ secondary case; majority of the Court of Appeal)
Add together the tariff amount and the common law damages for PSLA for the non-whiplash injuries, then step back and make a Sadler-type deduction to reflect overlapping PSLA, with the proviso that the final award cannot be less than would have been awarded for the non-whiplash injuries alone.
The Court’s Reasoning
Lord Burrows, with whom Lord Reed, Lord Lloyd-Jones, Lord Hamblen and Lady Rose agreed, gave the sole substantive judgment. The unanimous Court upheld the third approach as the correct one.
Statutory language
The Court held that the wording of section 3(2) of the 2018 Act made clear that the tariff amount is confined to damages for PSLA ‘in respect of the whiplash injury or injuries’ and plainly does not extend to PSLA in respect of non-whiplash injuries. Particular reliance was placed on section 3(8), which Lord Burrows described as follows:
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. It may even be thought significant that the words ‘reflects the combined effect’ match the precise words used by Pitchford LJ in Sadler. But the closing bracketed words show that the common law approach must not be applied in such a way as to be inconsistent with imposing the tariff amount laid down in the 2021 Regulations.
The presumption against alteration of common law
The Court applied the well-established presumption that, where a statute departs from the common law, the departure should be presumed to be as limited as possible. Lord Burrows cited Lord Reid in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 614:
Parliament ‘can be presumed not to have altered the common law further than was necessary’.
Purpose of the legislation
The Court found that the purpose of the 2018 Act was solely to address the perceived mischief of excessive whiplash claims, to discourage false or exaggerated claims, and to reduce associated costs and motor insurance premiums. There was nothing to indicate Parliament intended the lowering of PSLA damages to extend beyond whiplash claims. Lord Burrows observed:
Moreover, to apply the familiar basic common law Sadler approach, with its somewhat impressionistic adjustment, is likely to be much easier to apply than would be the more precise, scientific and unfamiliar approach favoured by the Master of the Rolls.
Rejection of the first approach
The Court rejected the defendants’ first approach for four reasons. First, nothing in the legislation or explanatory material indicated the reform extended to non-whiplash injury damages. Second, the approach demanded an unrealistic degree of precision in identifying concurrent PSLA when, in practice, such concurrence must be assessed in a rough and ready way. Third, it would produce the bizarre consequence that a claimant might receive less in total PSLA damages for both whiplash and non-whiplash injuries than for the non-whiplash injury alone, thereby incentivising claimants to ignore whiplash injuries entirely. Lord Burrows stated:
An interpretation of legislation that produces absurd consequences should be rejected unless no other interpretation is possible.
Fourth, it would represent a more significant departure from the common law than the third approach, contrary to the applicable presumption.
Rejection of the second approach
The Court also rejected the claimants’ primary case (no deduction at all). Lord Burrows held:
The central objection to the second approach is that, contrary to the aim of compensatory damages, it ignores altogether the problem of double recovery for the same loss.
He rejected the submission that the tariff amount and common law damages were incommensurable:
Certainly the tariff amount does not purport to be full compensation. However, it is partial compensation and is therefore not incommensurate with common law damages. The correct analogy is with ‘large and small apples’ not with ‘apples and pears’.
The correct step-by-step approach
Lord Burrows set out the correct approach at paragraph 52:
(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.
Practical Significance
This decision is of very considerable practical importance given that it affects the assessment of damages in the vast majority of road traffic personal injury claims involving whiplash. The Court noted that in the quarter ending December 2023 alone, 43,159 claims (66.7% of all OIC portal claims) were for both whiplash and non-whiplash injuries.
The judgment confirms that the common law Sadler approach to multiple injuries survives the whiplash reforms, subject to the modification that the statutory tariff cannot be reduced. Any overlap deduction must come from the common law component for the non-whiplash injuries, and the overall award must not fall below what would have been awarded for the non-whiplash injuries alone. This caveat is critical: it ensures that claimants are never disadvantaged by having suffered a whiplash injury in addition to other injuries.
The decision preserves the rough and ready, impressionistic nature of the Sadler exercise, rejecting demands for artificial scientific precision that would increase costs and complexity — directly contrary to the streamlined OIC portal process that the whiplash reforms were designed to facilitate. It also definitively forecloses the argument that damages for non-whiplash injuries can be reduced by the operation of the whiplash tariff regime, safeguarding the integrity of common law damages for injuries falling outside the statutory scheme.
Verdict: The appeals of the defendants (advocating the first approach) were dismissed. The cross-appeals of the claimants (advocating the second approach) were also dismissed. The Court of Appeal majority’s decision, adopting the third approach — adding the statutory tariff amount and the common law damages for the non-whiplash injuries, then stepping back to make a Sadler deduction to avoid double recovery, subject to the caveat that the final award cannot be less than the common law damages for the non-whiplash injuries alone — was upheld.
Source: Hassam and another v Rabot and another [2024] UKSC 11
