UK SUPREME COURT HANDS DOWN JUDGMENT ON MIXED INJURIES: HASSAM & ANOR -v- RABOT & ANOR [2024] UKSC 11
Introduction
Ask a group of aspiring law students what would constitute just compensation when one claimant sustains, say, a 6-month neck injury caused by a negligent driver. Ask the same question, but this time with a second claimant suffering 6-month injuries to their neck, left elbow and left knee. Most, if not all, respondents would tell you that the second claimant should receive a higher amount of compensation. Many would tell you that this higher amount ought not to be a blunt aggregation of what each individual injury would receive on its own.
Now tell the prospective students that if the second claimant purposefully refrained from claiming for their neck injury, but only claimed for the other injuries, they would in fact get more compensation. You will be told this makes no sense.
The question raised in these appeals was one of statutory interpretation (at [36]) – to what outcome does the text lead us?
On 26 March 2024 the UK Supreme Court handed down judgment in Hassam and another v Rabot and another [2024] UKSC 11, a set of appeals relating to the correct approach to determining quantum of general damages for pain suffering and loss of amenity (“PSLA”) in claims where both whiplash and non-whiplash injuries were sustained from a road traffic accident (“RTA”) which occurred on or after 31 May 2021.
The question for the UK Supreme Court to decide was put by Lord Burrows at [3]:
“[W]hat is the impact of the whiplash reform on damages for PSLA in respect of non-whiplash injuries suffered by the claimant in the same accident in which he or she suffers a whiplash injury? More specifically, what is the position on concurrent PSLA caused by both a whiplash injury and a non-whiplash injury?”
The UK Supreme Court unanimously upheld the majority decision of the Court of Appeal and refused the Defendants' appeal (as well as the Claimants’ cross-appeal), applying the same reasoning as adopted by the majority judgments of Nicola Davies LJ and Stuart-Smith LJ in the lower Court.
The full decision of the UK Supreme Court can be found here.
Background
The appeal concerned two claims (Rabot v Hassam and Briggs v Laditan) originating in the County Court at Birkenhead arising out of RTAs which post-dated 31 May 2021. Each claimant suffered PSLA for which liability and causation was admitted by the respective defendants. As confirmed by the medical evidence in each case, each claimant suffered both whiplash injuries and other, non-whiplash injuries.
The combined effect of the Civil Liability Act 2018 (“the 2018 Act”) and the Whiplash Injury Regulations 2021 (“the Regulations”) is, in brief, to apply a tariff amount to whiplash injuries of up to 2 years’ duration (including those accompanied by minor psychological injuries). These tariff amounts are universally lower than would otherwise have been allowed applying common law principles.
The Different Approaches
As identified by Lord Burrows in the UK Supreme Court at [6-9], there are at least three possible approaches to dealing with concurrent PSLA caused by whiplash and non-whiplash injuries:
- Take the tariff award set down by the Regulations as the starting point, and only allow any uplift to this if the non-whiplash injury has caused different PSLA;
- Add together the tariff amount for the whiplash injury and the amount of common law damages for PSLA for the non-whiplash injury (i.e. by reference to the guidance provided by the Judicial College), without further deduction;
- Carry out the above addition but then stand back from the total figure and consider whether to make a deduction to reflect any overlap between the two amounts (i.e. where both amounts cover the same PSLA), applying by analogy the principles in Sadler v Filipiak [2011] EWCA Civ 1728 (“Sadler”).
In Sadler, the Court of Appeal had recognised that when assessing damages in respect of multiple injuries at common law, it was, “always necessary to stand back from the compilation of individual figures…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.” (Pitchford LJ at [34]). As applied by the courts, in most cases the Sadler adjustment results in a significant reduction in the total award.
At first instance in the County Court, the approach adopted by the District Judge in both claims was the third approach outlined above.
Decision of the Court of Appeal
The defendants in Rabot and Briggs appealed on the basis that the approach adopted by the District Judge was wrong, arguing that the correct approach ought to be the first identified above. The claimants cross-appealed, arguing in the first instance that the second approach ought to have been adopted, and in the alternative arguing that the third approach was correct. The appeals were leapfrogged to the Court of Appeal, which handed down judgment on 20 January 2023.
By a 2-1 majority, the Court of Appeal dismissed the defendants’ appeal. The leading judgment was given by Nicola Davies LJ, who held that the third approach was the correct one, applying a purposive statutory interpretation to section 3 of the 2018 Act by considering that the mischief at which the legislation was directed was whiplash claims alone. However, the third approach was to be applied with the caveat that the final award (after a Sadler adjustment) cannot be less than would be awarded for the non-tariff injuries if they had been the only injuries suffered by the claimant.
The defendants appealed to the UK Supreme Court, arguing that the first approach ought to be preferred; the claimants cross-appealed, arguing that the second approach ought to be preferred.
Decision of the UK Supreme Court
The UK Supreme Court unanimously dismissed the defendants’ appeal and the claimants’ cross-appeal. The sole judgment was given by Lord Burrows, with whom Lord Reed, Lord Lloyd-Jones, Lord Hamblen, and Lady Rose agreed.
Lord Burrows considered in detail the legislative background to the 2018 Act, the practical ramifications of each of the three suggested approaches, and the reasoning of the majority and of Sir Geoffrey Vos MR’s dissent in the Court of Appeal. He concluded that the third approach, as favoured by the majority in the Court of Appeal, was correct.
Lord Burrows endorsed the statutory interpretation of section 3 of the 2018 Act identified by Nicola Davies LJ and Stuart-Smith LJ in the Court of Appeal, noting that the wording of s.3(2) makes clear that the tariff amount is confined to damages for PSLA, “in respect of the whiplash injury or injuries,” such wording plainly not extending the tariff amount to PSLA in respect of non-whiplash injuries (at [37]). He further noted that s.3(8), being the only express reference in the 2018 Act to damages for non-whiplash injuries, indicates that the statute is not departing from the standard common law approach, and indeed goes further by indicating that the Sadler adjustment is to be applied (at [38-40]).
The majority in the Court of Appeal had further considered the mischief at which the 2018 Act was directed, in light of the well-established presumption that to the extent a statute is departing from the common law, that departure should be presumed to be as limited as possible. Lord Burrows upheld their reasoning, noting that the perceived mischief of the 2018 Act was whiplash claims, and that there was, “nothing at all to indicate that the purpose of the 2018 Act was to extend the lowering of PSLA damages beyond whiplash claims” (at [41]).
Rejection of the First and Second Approaches
After setting out positively why the third approach should be adopted, Lord Burrows further considered why the first and second approaches should be rejected.
In rejecting the first approach, Lord Burrows considered that as a matter of statutory interpretation the Master of the Rolls had placed unwarranted emphasis on the words, “is to be” in s.3(2) of the 2018 Act, in-so-doing underplaying the importance of the words, “in respect of” the whiplash injury or injuries (at [45]). Further, Lord Burrows considered the first approach to be too complex to apply, in essence requiring an exactitude in working out what constitutes concurrent PSLA when this cannot be precisely measured, and may in fact serve to increase costs by requiring far more detailed medical reports to be produced in every case (at [46]). Indeed, as recognised by Stuart-Smith LJ below, the first approach would produce the bizarre consequence that 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, and may be incentivised to ignore the whiplash injury and to bring a claim just for the non-whiplash injury, thereby avoiding the tariff amount (at [47]).
The second approach was also rejected by Lord Burrows on the straightforward basis that it failed to take account of the problem of double recovery for the same loss, contrary to the aim of compensatory damages (at [49]).
The correct approach step-by-step
Lord Burrows finally set out the correct approach to be taken where the claim is seeking damages for PSLA in respect of whiplash injuries (covered by the 2018 Act) and non-whiplash injuries (at [52]):
- Assess the tariff amount by applying the table in the 2021 Regulations.
- Assess the common law damages for PSLA for the non-whiplash injuries.
- Add those two amounts together.
- 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.
- If it is decided that a deduction is needed that must be made from the common law damages.
- 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.”
This is in essence the same approach set out by Nicola Davies LJ at [38] of her judgment.
Commentary
The UK Supreme Court has engaged in a purposive interpretation of the 2018 Act and the Regulations, and by adopting this approach, reached an outcome that resonates with our intuitive sense of justice. Our fictitious future law students (see the Introduction to this write-up) discover that their responses accord with the position at common law. Courts are required to ascertain the meaning of the words by contextualising them and considering the purpose of the legislation – see [36].
In enacting the 2018 Act (and the Regulations which the Lord Chancellor was empowered to introduce thereunder), Parliament is taken to have altered the common law no further than was necessary. It therefore did not remove the right to a common law assessment of damages for non-whiplash injuries ‘by a sidewind’ – see [49] of Stuart-Smith LJ’s judgment in the Court of Appeal in these proceedings.
The valuation of personal injury damages is by nature not an exact science, but more akin to an imprecise art (see [46]). Sadler adjustments are “avowedly impressionistic” but an already-familiar feature of the common law, and the best available tool for avoiding the risk of double recovery, whilst aiming to ensure adequate compensation for claimants.
The UK Supreme Court’s judgment – explicitly via paragraphs [51] and [52] – has endorsed the Court of Appeal’s decision, and set out the clear approach for practitioners to adopt when considering mixed injury claims.
Notably, paragraph [12] contains a reminder that brackets of general damages established by previous cases are to be, “adjusted upwards for inflation”, for the particular case before the Court.
The press summary of the judgment can be found here.
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This case summary/comment was composed by Chris McGeever and 25 Canada Square Chambers Pupil Mark Erridge.