Hassam and another v Rabot and another

Where a claimant suffers whiplash and non-whiplash injuries in the same accident, the court must assess the statutory tariff amount and the common law damages for the non-whiplash injuries separately, then add them together.

The court must stand back and make a rough and ready deduction for overlapping pain, suffering and loss of amenity. Any deduction must be made from the common law damages. The final award must not fall below the amount recoverable for the non-whiplash injuries alone.

The statutory tariff provides partial compensation. It therefore does not justify either limiting recovery to loss attributable exclusively to non-whiplash injuries or awarding both amounts without addressing double recovery.

Two claimants suffered whiplash and non-whiplash injuries in road traffic accidents. At separate quantum hearings, District Judge Hennessy assessed the statutory tariff amounts, assessed common law damages for the other injuries, added the figures and deducted sums for overlapping pain, suffering and loss of amenity.

By a majority, the Court of Appeal upheld that methodology, subject to a caveat that the final award could not be lower than the common law award for the non-whiplash injuries alone: [2023] EWCA Civ 19, [2023] KB 171. It increased one claimant's award because the deduction had breached that caveat. Sir Geoffrey Vos MR dissented.

The defendants appealed. The claimants cross-appealed. The central question was how the whiplash reforms affect concurrent loss caused by both tariff and non-tariff injuries.

Lord Burrows, with whom Lord Reed, Lord Lloyd-Jones, Lord Hamblen and Lady Rose agreed, dismissed the defendants' appeals and the claimants' cross-appeals.

1. Section 3(2) of the Civil Liability Act 2018 confines the tariff to damages for pain, suffering and loss of amenity in respect of whiplash injuries. It does not extend the tariff to non-whiplash injuries. Section 3(8), particularly its reference to the combined effect of the injuries, preserves the standard common law approach to multiple injuries, subject to the statutory tariff.

2. The legislation altered the common law only so far as necessary to reduce damages for whiplash injuries. Its language, context and purpose disclosed no intention to reduce common law damages for non-whiplash injuries. The statutory construction favoured by the Court of Appeal majority also avoided complexity, increased medical-reporting costs and the anomalous possibility that claiming for an additional whiplash injury could reduce the claimant's award.

3. The correct methodology has six stages. The court must: assess the tariff under the Whiplash Injury Regulations 2021; assess common law damages for the non-whiplash injuries; add the figures; stand back and consider an adjustment under Sadler; make any necessary deduction from the common law damages; and ensure that the final award is no lower than the common law damages recoverable for the non-whiplash injuries alone.

4. The adjustment will almost always be a deduction. It must reflect, in a rough and ready way, the need to prevent double recovery for concurrent loss. The exercise differs from an ordinary multiple-injury assessment because the tariff deliberately provides less than full compensation.

5. The defendants' alternative methodology was rejected. It wrongly required the claimant to isolate with precision loss caused only by the non-whiplash injuries and would extend the reform beyond its statutory subject. The claimants' methodology was also rejected because adding both figures without any adjustment would permit double recovery. The tariff is partial compensation and remains commensurable with common law damages.

6. Although not in issue, an exceptional-circumstances uplift of up to 20% may be included when fixing the tariff amount at the first stage.

1. United Kingdom Supreme Court: The defendants' appeals and the claimants' cross-appeals were dismissed unanimously: [2024] UKSC 11.
2. Court of Appeal: By a majority, the defendants' appeals and the claimants' primary cross-appeals were dismissed. The secondary cross-appeal concerning the deduction in one case was allowed and the award increased: [2023] EWCA Civ 19, [2023] KB 171.
3. County Court: District Judge Hennessy assessed the tariff and common law awards separately, added them and made deductions for overlapping pain, suffering and loss of amenity.