In February 2023, Jonathan Lindfield wrote an article for Lexis Nexis on the Court of Appeal’s decision in Hassam v Rabot [2023] EWCA Civ 19, a case concerning how awards for PSLA should be calculated when part of the claimant’s claim for injury falls to be assessed by reference to the Whiplash Injury Regulations 2021 and other part(s) fall outside of that statutory framework.
At the time, many were a little surprised to see the dissent of Sir Geoffrey Vos MR, which essentially advocated for suppressed damages across the board, and not just for whiplash injuries, which had been the position advocated for by the defendant insurers. In his article, Jonathan said that the debate may not be over.
It wasn’t, because the case was appealed to the Supreme Court, no doubt owing to the dissent of the Master of the Rolls. Judgment, which was unanimous, was handed down on 26th March 2024, and can be found here.
This update is a brief one. In short, the Court of Appeal (and, essentially, the District Judge at the beginning of it all) were right, and the dissenting Judgment in the Court of Appeal was wrong. Without spilling into all of the reasons why the approach of the defendant insurer, which the Master of the Rolls had preferred (known in the Judgment as “the First Approach”), and the approach of the Intervener (the “Second Approach”, as also advanced as the claimants’ “primary case”), were wrong, the end result is contained in Paragraphs 52 and 53 of Lord Burrows’ Judgment, which essentially mirror, but flesh out, Nicola Davies LJ’s Judgment at paragraph 38 of the Court of Appeal decision.
- Where the claimant is seeking damages for PSLA in respect of whiplash injuries (covered by the 2018 Act) and non-whiplash injuries a court should:
(i) Assess the tariff amount by applying the table in the 2021 Regulations.
(ii) Assess the common law damages for PSLA for the non-whiplash injuries.
(iii) Add those two amounts together.
(iv) 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.
(v) If it is decided that a deduction is needed that must be made from the common law damages.
(vi) 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.
- Finally, I should add for completeness that, although not in issue in these appeals, where the exceptionality requirement applies (see paras 22 and 24 above), the tariff amount being assessed at the first step (see para 52(i)) may be increased by up to 20%.
The Court recognised the over-burdensome nature of expecting claimants to, with precision, separate out what PSLA was concurrently caused by the whiplash and the non-whiplash injury and what wasn’t. This was particularly so when considering the burden that would place on medical experts and the likely increased costs of having to do the same, in an environment where costs were meant to be reduced and there was no provision for oral expert evidence.
Finally, the Court’s observation that the “standing back” exercise when assessing multiple injuries as per Sadler v Filipiak [2011] EWCA Civ 1728 is “avowedly impressionistic” is also a welcome reminder that rarely is the calculation of PSLA (and particularly of “overlap” between injuries) an exact science, and it is not intended to be.
Jonathan is an experienced, sought-after, specialist personal injury barrister, whose practice encompasses all aspects of personal injury litigation. Jonathan regularly acts for both claimants and defendants on the fast and multi-track, in claims worth up to £1m. Read more here.