The Supreme Court handed down Judgment in Hassam and another v Rabot and another [2024] UKSC 11 on 26 March 2024, dismissing both the Defendants’ appeals and the Claimants’ cross-appeals (having also heard from interveners the Association of Personal Injury Lawyers and the Motor Accident Solicitors Society). The Supreme Court, in a unanimous judgment delivered by Lord Burrows, upheld the Court of Appeal’s decision [2023] EWCA Civ 19 on the correct approach to assessing damages for claims involving both whiplash and non-whiplash injuries (“mixed injury cases”). This may come as some relief to practitioners in the midst of preparing Advices following that guidance, and to the Judicial College whose recently published 17^th Edition of the Guidelines for the Assessment of General Damages in Personal Injury Cases sets out the test in the “Note on Whiplash Injuries”.

The Supreme Court implicitly endorsed the approach to multiple injuries in Sadler v Filipiak [2011] EWCA Civ 1728 and its application (with modification, see below) to mixed injury cases, noting at [39] that s3(8) of the Civil Liability Act 2018 (“the Act”) uses the same wording “reflects the combined effect” as adopted by Pitchford LJ in [34] of Sadler as now enshrined in the “Note on Multiple Injuries” in the Judicial College Guidelines.

The Appeal

The Defendants appealed on the basis that the correct approach was to start by awarding the tariff set out in The Whiplash Injury Regulations 2021 (“the Regulations”) and award further damages only for pain, suffering, and loss of amenity (“PSLA”) which was wholly distinct from that caused by any whiplash injuries.

The appeal was dismissed as there was nothing in the relevant legislation (including the explanatory notes) indicating an intention to affect non-whiplash injuries, it would increase complexity by requiring more precise medical evidence, it would have the bizarre consequence of claimants being better compensated if they did not claim for whiplash injuries suffered alongside non-whiplash injuries, and because it would represent a greater departure than necessary from common law principles. The Supreme Court concluded that this approach was therefore not consistent with the legislative intent of the Act.

The Cross-Appeal

The Claimants cross-appealed, and were supported by the interveners, on the basis that the correct approach was to assess the whiplash injuries as set out in the Regulations, assess the non-whiplash injuries using common law principles, and add the amounts together with no adjustment. Any attempt to adjust the total was described as adding “apples and pears”.

The cross-appeal was dismissed as it did not account for the overlap of PSLA which would be present in most, if not all, cases, and would therefore amount to double recovery. Lord Burrows at [49] stated that the correct analogy was with “large and small apples”. Allowing such double recovery could not have been the intention of Parliament.

The Correct Approach

The correct approach was set out in a step-by-step process at [52]:

• Assess the tariff amount by applying the table in the Regulations;
• Assess the common law damages for the non-whiplash injuries;
• Add those two amounts together;
• Step back and consider whether one should make an adjustment applying Sadler;
• If it is decided that a deduction is needed, that must be made from the common law damages;
• The final award cannot be lower that would have been awarded as common law damages for the non-whiplash injuries.

Lord Burrows noted that the application of Sadler in mixed injury cases was modified by the legislative intent of the Act in reducing damages for whiplash injuries – the adjustment would therefore almost always be a deduction.

The full judgment and press summary are available on the Supreme Court website.