Charlotte Victoria Hassam & Anor. v Yoann Samuel Rabot & Anor.

In a mixed-injury road traffic claim, Civil Liability Act 2018 section 3 fixes the award for qualifying whiplash injuries but does not alter the common law assessment of additional non-tariff injuries.

The court must assess the tariff and non-tariff injuries separately. It must then stand back, following Sadler, to ensure that the overall award reflects their combined effect without double counting. Any adjustment can be made only to the non-tariff award. The final award must not be less than the common law award for the non-tariff injuries had they been suffered alone.

Two appeals and cross-appeals from quantum-only decisions of the County Court at Birkenhead concerned claimants injured in separate road traffic accidents. Each had suffered qualifying whiplash injuries, attracting fixed tariff damages under the Whiplash Injury Regulations 2021, and additional soft-tissue injuries valued at common law.

The district judge valued the tariff and non-tariff injuries separately, added the figures, and then made a deduction from the non-tariff award for overlapping pain, suffering and loss of amenity. The defendants contended that concurrent loss of amenity was fully compensated by the tariff. The claimants challenged any, or the extent of, a totality adjustment.

The central issue was the proper assessment of damages for pain, suffering and loss of amenity in a mixed-injury claim under section 3 of the Civil Liability Act 2018.

1. By a majority, the defendants’ appeals were dismissed. Nicola Davies LJ’s judgment, with which Stuart-Smith LJ agreed, held that the Civil Liability Act 2018 made a radical but limited statutory departure from common law assessment for qualifying whiplash injuries. It did not, expressly or by necessary implication, reduce the common law compensation payable for additional non-tariff injuries.
2. Section 3(2) and, where applicable, section 3(3) require a tariff assessment for whiplash and minor psychological injuries. Section 3(8) permits an award for additional injuries which reflects the combined effect of all injuries, subject to the tariff limits. Its language did not require the court to treat all concurrently caused loss as exhausted by the tariff award.
3. The proper method in a mixed-injury case is to assess the tariff award under the Regulations, assess the non-tariff injuries at common law, and then stand back in accordance with Sadler v Filipiak [2011] EWCA Civ 1728. The court should make any necessary adjustment for overlap, recognising that the tariff contains an unknown and depressed sum for the whiplash component. The total award cannot be less than the common law award for the non-tariff injuries alone.
4. The defendants’ proposed method would effectively extinguish compensation for non-tariff injuries where symptoms had concurrent causes. It would extend the statutory scheme beyond its whiplash-focused purpose and could make compensation for the same non-tariff injury depend on whether the claimant had also suffered whiplash.
5. The Rabot cross-appeal was dismissed: the judge’s deduction was not wrong in principle or unreasonable. The Briggs cross-appeal was allowed because the deduction reduced the total below the non-tariff assessment. The non-tariff award was reduced by £340, producing total damages of £3,500.

The Master of the Rolls dissented. He would have allowed the defendants’ appeals and remitted both assessments.

• Court of Appeal (Civil Division): By majority, dismissed the defendants’ appeals in [2023] EWCA Civ 19; dismissed Rabot’s cross-appeal and allowed Briggs’s cross-appeal to the extent of substituting total damages of £3,500.
• County Court at Birkenhead: District Judge Hennessy assessed tariff and non-tariff injuries separately and made a totality deduction from the non-tariff award in each quantum-only claim.