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Supreme Court decision in Mixed Injury test cases – Hassam (and another) v Rabot (and another)

On 26 March 2024 the Supreme Court dismissed both the appeal and cross-appeal in the Mixed Injury tests cases, upholding the Court of Appeal majority approach [2023] EWCA Civ 19.

The Civil Liability Act 2018 (‘the Act’) and the Whiplash Injury Regulations 2021 made under it have specified the amount of damages payable for pain, suffering and loss of amenity (‘PSLA’) caused by a qualifying whiplash injury.  Those tariff amounts are significantly lower than common law damages would be for such injuries.

Whiplash injuries are often suffered in conjunction with other injuries that do not attract a statutory tariff but remain to be compensated at common law, so called ‘mixed injury’ cases.

The issue raised in the test cases before the Supreme Court was how a court should calculate the overall award in mixed injury cases.  In particular how should any PSLA which is found on the facts to be concurrently caused by both the whiplash and non-whiplash injury be compensated?

As the Supreme Court noted, although the sums at stake in the test cases are small many thousands of cases will be affected by the decision on the appeals.  Further, as the cost of awards are ultimately passed on to consumers via motor insurance premiums the decisions potentially affect the level of all motor insurance premiums.

The issue before the Supreme Court was one of statutory interpretation of Part 1 of the Civil Liability Act 2018 (the 2018 Act), specifically the meaning of sections 3:

‘…(2) The amount of damages for the [PSLA] payable in respect of the whiplash injury … is to be an amount specified in regulations … (8) Nothing in this section prevents a court, in a case where a person suffers an injury or injuries in addition to an injury or injuries to which regulations under this section apply, awarding an amount of damages for [PSLA] that reflects the combined effect of the person’s injuries (subject to the limits imposed by regulations under this section).’

The Supreme Court considered three possible interpretations:

  1. The Master of the Rolls’ approach, supported by the defendants on their appeal, of adding only an amount for damages for the non-concurrent PSLA caused by the non-whiplash injury to the tariff sum, because the tariff sum fully compensates for all PSLA caused by the qualifying whiplash injury including any which was also caused by a non-whiplash injury. Double recovery would therefore not arise.
  2. The claimants’ primary approach, supported by the interveners but rejected by the entire Court of Appeal below, of adding together the tariff amount and the common law amount for PSLA for the non-whiplash injuries with no deduction for the resulting double recovery.
  3. The Court of Appeal majority’s approach, supported by the claimants as their fall-back position, of adding together the tariff amount and the common law amount for the non-whiplash injury and then standing back to consider whether to make a deduction to address any double recovery which results subject to a caveat that such deduction could not take the overall damages below the level that would have been awarded for the non-whiplash injuries alone – a modified “Sadler” approach .

In his leading judgment, with which the rest of the panel agreed, Lord Burrows held that the claimants’ primary argument that double recovery was permitted by the Act was untenable.  The second approach was therefore rejected.  The question was then how the Act provided that double recovery should be dealt with.

The Court preferred the approach of the majority of the Court of Appeal, holding that that the Act could not be read as affecting damages for non-whiplash injuries, rejecting the Master of the Rolls’ judgment that such a reading was inevitable.  It also held that whilst ‘rough and ready’ the third approach was easier to apply than the Master of the Rolls’ ‘principled’ and ‘scientific’ approach and departed least from the current common law.

The third approach does however depart from the common law in an important aspect.

The Court acknowledged that the tariff values damages as what the Lord Chancellor deems ‘proportionate’ which is far lower than the common law damages which are ‘fair, just and reasonable’.  This is the first time that a court will be asked to make an adjustment to an overall award comprising damages calculated on these two different bases.  As the Supreme Court emphasised, in its guidance to the courts which will now have to carry out this adjustment exercise, it is a different exercise to that which they have carried out before.

The Supreme Court rejected all parties’ arguments that an adjustment was therefore in principle not possible: finding that a court would be comparing large and small apples and not apples and pears.  In the absence of any applicable precedents or more specific guidance it remains unclear how in practice a court should carry the adjustment exercise out.  How are tariff and common law damages to be weighed together to avoid double recovery?  How does a court compare large and small apples any more than apples and pears?  Regrettably, further litigation is therefore possible as all parties seek the necessary clarity.

Further Parliamentary intervention is also possible.  As the issue before the Supreme Court was one of legislative interpretation it could not look at emerging evidence of a significant upsurge in mixed injury claims since the legislation was introduced.  The Supreme Court commented that if there were such evidence, and the mischief of excessive numbers and levels of whiplash claims was mutating rather than being addressed, that would be a policy issue for Parliament.

Whilst welcome confirmation that double recovery for whiplash injuries is impermissible, further litigation and Parliamentary intervention may result.

The Judgment can be found here – Hassam (and another) v Rabot (and another) [2024] UKSC 11

Isabel Hitching KC appeared on behalf of the Appellants, instructed by Andrew Parker and Joanna Folan of DAC Beachcroft Claims Limited

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