At a glance: Supreme Court hears appeal on assessing PSLA in “mixed injury” whiplash claims

March 25, 2024

By David Illingworth, current Common Law pupil


On 26 March 2024, the Supreme Court handed down its judgment, endorsing the “orthodox” approach taken by the majority in the Court of Appeal. The court did so for the following reasons:

  1. As a matter of statutory interpretation, the 2018 Act makes clear that the tariff amount is confined to PSLA “in respect of” the whiplash injury. That language plainly did not extend the tariff amount to PSLA in respect of non-whiplash injuries.
  2. The fact that the Act preserved the court’s ability to make an award of damages which reflected “the combined effect” of a claimant’s injuries made clear the Act was not, in general, departing from the common law approach to multiple injuries, as set out in Sadler.
  3. Accordingly, the Sadler approach should 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.”
  4. That conclusion was consistent with a) the principle that Parliament only alters the common law to the minimum extent necessary and b) the purpose of the legislation, which was to drive down the costs of whiplash claims but not to lower PSLA damages for non-whiplash injuries.
  5. The approach proposed by the Master of the Rolls was too complex to apply in practice, relying as it did on “an exactitude in working out what constitutes concurrent PSLA when in practice such concurrence inevitably has to be looked at in a rough and ready way.”

Summary of original article (published February 19 2024):

The four-step approach adopted by the Court of Appeal was endorsed by the Supreme Court, with the following qualification: “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.”

On 24 February 2024, the Supreme Court heard the appeal in Hassam v Rabot, a pair of test cases which centre on how general damages are to be assessed in cases which involve both whiplash injuries (to which the fixed tariff under the Whiplash Regulations 2021 applies) and non-whiplash injuries (awarded under general common law principles).

Three possible approaches were proposed by the parties:

  1. The ‘A+B’ approach: make the tariff award for the whiplash injury and a conventional common law general damages award for the non-tariff injury. Then aggregate the two awards. This was the claimants’ primary case on appeal.
  2. The ‘orthodox’ approach: as the District Judges did in both cases, make the tariff award for the whiplash injury, a common law general damages award for the non-tariff injury, and then apply a “totality” discount, following Sadler. This was the claimants’ secondary case.
  3. The ‘tariff-first’ approach: in the defendants’ submission, the tariff award covered all of the PSLA attributable to the whiplash injury; judges should only consider awarding common law damages for any additional PSLA which can be exclusively attributed to the non-tariff injuries.

In the Court of Appeal, the lead judgment was given by Nicola Davies LJ, with whom Stuart-Smith LJ agreed. The ‘orthodox’ approach was endorsed, with the important caveat that the overall award of damages should not be less than the common law value of the non-tariff injuries assessed in isolation. That approach should involve the following four steps:

  1. assess the tariff award by reference to the Whiplash Regulations 2021;
  2. assess the award for non-tariff injuries on the usual common law principles;
  3. “step back” to carry out an adjustment for totality, applying  Sadler v Filipiak;
  4. in doing so, ensure that the final award is not less than would be awarded for the non-tariff injuries if they had been the only injuries suffered by the claimant.

Sir Geoffrey Vos MR, dissenting, held that section 3 of the 2018 Act “leads inexorably to the conclusion…as a matter of statutory construction” that damages for PSLA concurrently caused by both whiplash and other injuries are to be governed by the tariff alone. Accordingly, he endorsed the ‘tariff-first’ approach.


Suppose that a claimant suffers whiplash (duration 9 months) and a soft tissue knee injury (3 months). Their loss of amenity (difficulty picking up shopping, carrying the children etc) would have been the same regardless of whether the knee injury had occurred. However, their quantum of pain and suffering is clearly increased by living with a painful knee for three months, in addition to the symptoms of whiplash.

Starting the analysis with the claimant’s injuries leads to the ‘orthodox’ approach favoured by the majority in the Court of Appeal. The whiplash injury is valued under the tariff; the knee injury under the Judicial College Guidelines. An appropriate Sadler discount is applied. The claimant is compensated fully for their pain and suffering, but is arguably over-compensated for their loss of amenity, which would have been the same absent the knee injury.

Starting the analysis with the PSLA, as the Master of the Rolls did, tends to illuminate more clearly those elements of PSLA which are concurrently caused by both the whiplash and non-whiplash injuries. The claimant does not over-recover for their loss of amenity, but is arguably left undercompensated for their additional pain and suffering. The Master of the Rolls’ approach would permit damages above the tariff amounts only for injuries which last for longer than the whiplash injury, or which cause loss of amenity which can be clearly identified as a distinct and additional compensable harm.

It remains to be seen how the Supreme Court will balance this apparent tension between the risks of overcompensating loss of amenity versus undercompensating pain and suffering. The decision will be keenly awaited by many personal injury practitioners.