Supreme Court rejects appeals in whiplash mixed-injuries case

Burrows: Legislation supports the Sadler approach

The Supreme Court has unanimously rejected the appeal and cross-appeal against the decision on how judges should value claims that combine both whiplash and non-whiplash injuries.

It upheld the approach of District Judge Hennessy at first instance and then the Court of Appeal that, after calculating the tariff and common law damages, the court should take a step back to avoid double recovery for the same pain, suffering and loss of amenity (PSLA).

Giving the judgment, Lord Burrows acknowledged that this would be “rough and ready”.

He continued: “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.”

Sadler v Filipiak [2011] EWCA Civ 1728 set out the standard approach at common law to assessing damages for PSLA for multiple injuries, where the court stands back to make an appropriate deduction to avoid double recovery.

This was the approach approved by the majority of Court of Appeal last year, with the Master of the Rolls, Sir Geoffrey Vos, dissenting.

Lord Burrows stressed that, if a deduction was needed, that must be made from the common law damages as the tariff figure was statutory.

“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.”

Lord Burrows noted that, although the sums at stake in the conjoined cases of Hassam & Anr v Rabot & Anr [2024] UKSC 11 were small, “it is clear that many thousands of cases are potentially affected by the decision on these appeals”.

He said the question raised in the appeals was one of statutory interpretation. The Civil Liability Act 2018 was clear that the tariff amount was confined to damages for PSLA in respect of the whiplash injuries.

The only express reference to damages for non-whiplash injuries is in section 3(8), which allows the court in cases of mixed injuries to award PSLA that “reflects the combined effect of the person’s injuries (subject to the limits imposed by regulations under this section)”.

Lord Burrows said “it may even be thought significant that the words ‘reflects the combined effect’ match the precise words used by Pitchford LJ in Sadler”.

He added: “The common law Sadler approach to multiple injuries is basically to be applied subject to the qualification that the Sadler discount must respect the legislature’s decision to award the lower sums specified for PSLA in respect of the whiplash injuries.”

This approach was further supported by considering the purpose of the Act. This was solely aimed at whiplash claims and “there is nothing at all to indicate that the purpose of the 2018 Act was to extend the lowering of PSLA damages beyond whiplash claims”.

Nor did this approach undermine the purpose of the legislation, as the defendants argued.

“Even if there were to be evidence suggesting that claimants might be able to thwart part of the purpose of the whiplash reform by claiming for multiple injuries, that would be a policy problem for Parliament to address and would not be something that the courts could, or should seek, to deal with by distorting the legislation.”

Lord Burrows also explained why the defendants were wrong to argue that common law damages for PSLA for non-whiplash injuries should only be added if the claimant established that they caused different PSLA to the whiplash, as Sir Geoffrey had argued in his dissenting judgment.

This would produce “the bizarre consequence” 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, he said.

“Similarly, in some cases the claimant would be incentivised to ignore the whiplash injury and to bring a claim just for the non-whiplash injury thereby avoiding the tariff amount.

“The Master of the Rolls recognised this difficulty but, with respect, could offer no solution to it.”

He rejected too the claimants’ primary argument, and the sole case put forward by the Association of Personal Injury Lawyers and Motor Accident Solicitors Society as intervenors, that there should be no reduction for double recovery.

“The supposed justification for this… is that the tariff amount is avowedly not full compensation and instead is a smaller sum that is explained… as being ‘proportionate’ compensation. It was submitted, therefore, that there is an ‘apples and pears’ problem of incommensurability.

“I disagree. 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’.”

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