Quantum of solace: Supreme Court to hear appeal on assessing PSLA in “mixed injury” whiplash claims

February 19, 2024

By David Illingworth, current Common Law pupil

Subsequent update can be found here.

Introduction

General damages for pain, suffering and loss of amenity (PSLA) are intended to give a claimant injured in an accident a “reasonable solace for [their] misfortune” (Andrews v Grand & Toy Alberta Ltd). On 24 February 2024, the Supreme Court will hear 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 (for which PSLA is awarded under the fixed tariff set out in the Whiplash Regulations 2021) and non-whiplash injuries (awarded under general common law principles for general damages). As a preview to that hearing, this article provides a commentary on the judgment of the Court of Appeal, which was handed down on 20 January 2023.

The facts

The appeal concerned two cases which were leapfrogged to the Court of Appeal from Birkenhead County Court.

In Rabot v Hassam, the District Judge assessed the claimant’s tariff injuries at £1,390 and their non-tariff injuries at £2,500 (total £3,890). The judge then “stepped back”, following the principle in Sadler v Filipiak, and considered whether the damages should be adjusted to reflect the totality of the PSLA sustained and to avoid double counting. Having done so, the judge identified a clear overlap between the injuries and reduced the overall award to £3,100.

In Briggs v Laditan, the judge assessed the tariff injuries at £840, and the non-tariff injuries at £3,000 (total £3,840). Taking the same approach as in Rabot, the overall award was reduced to £2,800. This took the total award below the value attributed to the non-whiplash injuries.

The issue in the appeal

The Court of Appeal was asked to decide: where a claimant suffers a tariff injury (whiplash) at the same time as one or more non-tariff injuries, how is the court to assess damages for PSLA?

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 ‘bottom up’ 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.

Judgment in the Court of Appeal

Nicola Davies LJ, with whom Stuart-Smith LJ agreed, gave the lead judgment in the Court of Appeal. 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.

In Davies LJ’s judgment, the 2018 Act recognised, at section 3(8), the need for an award of damages in respect of additional, non-tariff injuries: [8].

In a “mixed injury case”, the court had to carry out two separate assessments. The Whiplash Regulations 2021, and the Civil Liability Act 2018 under which they were made, did not make any statutory incursion into the common law principles governing the award of general damages for non-tariff injuries. Those common law principles were unaffected: [24]-[27].

The approach to totality in Sadler, whereby the court “steps back” and considers whether the total award represents double counting or overcompensation, was appropriate when all of the injuries fell to be assessed under common law principles. The difficulty in a “mixed injury” case was in knowing what, if any, allowance for totality had already been made in the tariff for PSLA arising from a concurrent cause: [35].

Section 3(8) of the Civil Liability Act 2018, the legislation under which the Whiplash Regulations were made, used the same language as Pitchford LJ in Sadler – referring to the need “properly to reflect the combined effect of all the injuries” on the claimant. This leant weight to the argument that the Sadler approach ought also to be followed in “mixed injury” cases, bearing in mind that only the non-tariff component of the award may be reduced: [36].

Accordingly, the Court of Appeal held that the ‘orthodox approach’ was the right one, with the caveat outlined above. Judges should:

  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 a Sadler adjustment;
  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: [38].

Accordingly, the defendants’ appeal was dismissed in both Rabot and Briggs: the approach to “mixed injury” cases they had proposed “would result in the claimant’s right to common law compensation for PSLA caused by the non-tariff injury where the whiplash injury is a concurrent cause being effectively extinguished”: [39].

As to the claimants’ cross-appeals, Rabot was dismissed but Briggs was allowed. The Sadler adjustment in the latter was impermissibly large, as it took the overall award below the level of assessed damages for the non-tariff injuries alone. The District Judge’s award of £2,800 was substituted for one of £3,500.

The Master of the Rolls’ dissenting judgment

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: [58]. He would have allowed the defendants’ appeal, for the following reasons: [63]-[69].

  1. Section 3 of the 2018 Act applied to “a case” where a whiplash injury is suffered, not to “a claim” made by a person suffering such an injury. At first sight, the provisions would therefore apply in all cases where a whiplash injury is sustained even if the claimant sought damages for non-whiplash injuries only, in an attempt to increase their recovery.
  2. Section 3(2) provided that the amount of damages for PSLA “payable in respect of the whiplash injury…is to be” the amount in the Whiplash Regulations 2021. That statutory language encompassed all cases where, on the evidence, the additional injuries did not cause any loss of amenity beyond that which was caused by the whiplash injuries.
  3. The language of section 3(8) gave no assistance as to how any additional damages to reflect “the combined effect” of the person’s injuries should be assessed.
  4. The proper approach was to assess what the additional consequences of any non-tariff injuries were, beyond the consequences of the tariff injury. Where those consequences overlapped, it was “unprincipled” to apply the usual common law damages approach to non-tariff injuries in isolation, before applying Sadler.
  5. The approach favoured by the majority was inadequately scientific. Sadler applied only where all injuries fell to receive full compensation, which was not true of whiplash injuries.

Comment

The Master of the Rolls noted, in his dissenting judgment, that 67.3% of whiplash claims in the pre-action online portal were, in fact, mixed injury claims. The Supreme Court’s decision in this case will therefore have wide-reaching consequences for the 24,000 claims per month currently being brought within that portal.

The common law rules for the assessment of general damages have been developed by the courts over a long period. It would be entirely possible for the Supreme Court, perhaps influenced by policy considerations, to limit their application to mixed injury cases, or even to disapply them altogether. Whether or not the Supreme Court decides to do so will turn, in part, on whether they approach the analysis by starting with the PSLA, or the injury.

The problem is best illustrated by an example. A claimant suffers whiplash (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 injuries leads to the ‘orthodox’ approach favoured by the majority of 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 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.

Subsequent update can be found here.

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