Charlotte Victoria Hassam v Yoann Samuel Rabot

Heard on 20 February 2024

Lord Burrows ( with whomLord Reed, Lord Lloyd-Jones, Lord HamblenandLady Roseagree):

In general terms, Part 1 of the Civil Liability Act 2018 (“the 2018 Act”) and the Whiplash Injury Regulations 2021 (SI 2021/642) (“the 2021 Regulations”) have significantly reduced the amount of damages payable for pain, suffering and loss of amenity (“PSLA”) in respect of whiplash injuries caused by negligent driving. The 2021 Regulations lay down the amount of damages that is payable for PSLA according to a tariff that varies only by reason of the duration of the whiplash injury. I shall refer to that amount of damages as the “tariff amount”.

The highest percentage reduction, in comparison with the damages that would have been recoverable for PSLA at common law, is where the duration of the whiplash injury is for not more than 3 months. The tariff amount for a whiplash injury of that duration is £240 (or £260 if there was additional minor psychological injury) compared to common law damages (as set out in the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (“the Guidelines”), 16th ed (2021)) of £2,450. The lowest percentage reduction is where the duration of the whiplash injury is for 18 to 24 months. The tariff amount for a whiplash injury of that duration is £4,215 (or £4,345 if there was additional minor psychological injury) compared to a damages bracket, at common law, of £4,350 to £7,890.

The question raised by the two test cases before us is, what is the impact of the whiplash reform on damages for PSLA in respect of non-whiplash injuries suffered by the claimant in the same accident in which he or she suffers a whiplash injury? More specifically, what is the position on concurrent PSLA caused by both a whiplash injury and a non-whiplash injury?

Although the sums at stake in these two cases are small, it is clear that many thousands of cases are potentially affected by the decision on these appeals. The Official Injury Claim Service, on behalf of the Ministry of Justice, collects and analyses the data from the use of the Official Injury Claim online portal for road traffic accident small claims (“the OIC portal”) that was set up as part of the same package of reforms as the reduction of damages for whiplash injuries. The Official Injury Claim Service's statistics (Official Injury Claim, “Claims Data: for the period 1 October to 31 December 2023”) show that, in those three months, there were 62,557 whiplash claims (including claims for both whiplash and non-whiplash injuries) made using the OIC portal. 19,398 (30% of all the claims made using the OIC portal) were for whiplash injuries (plus minor psychological injuries) alone and 43,159 (66.7%) were for both whiplash and non-whiplash injuries.

I should make clear at the outset that, because the relevant legislation covers whiplash injuries and minor psychological injuries suffered by the claimant on the same occasion, I shall, for ease of exposition, include those minor psychological injuries as whiplash injuries rather than non-whiplash injuries.

The parties' submissions have focused on three possible approaches to dealing with concurrent PSLA caused by whiplash and non-whiplash injuries.

The first approach, advocated by the defendants (the appellants in these appeals), is that one should first take the tariff amount laid down in the 2021 Regulations. One should then add the amount of common law damages for PSLA for the non-whiplash injury but only if the claimant establishes that the non-whiplash injury has caused non-concurrent (ie different) PSLA. This approach therefore envisages a build up from the tariff amount and requires the claimant to identify with some precision any different PSLA caused by the non-whiplash injury. This was the approach accepted by Sir Geoffrey Vos MR in his dissenting judgment in these two test cases in the Court of Appeal: [2023] EWCA Civ 19, [2023] KB 171, paras 50–70.

The second approach is advocated as their primary case by the claimants and, as their sole case, by the interveners (who are the Association of Personal Injury Lawyers and the Motor Accident Solicitors Society). According to this approach, one should add together the tariff amount for the whiplash injury and the amount of common law damages for PSLA for the non-whiplash injury without any consideration of whether there should be a deduction to avoid double recovery for the same loss.

The third approach, advocated by the claimants as their secondary case, is that one should first add together the tariff amount for the whiplash injury and the common law damages for PSLA for the non-whiplash injury. Then one should stand back to consider whether to make a deduction to reflect any overlap between the two amounts (ie where both amounts cover the same PSLA). As is explained below, such an adding together, standing back and deduction is in line with what has been the standard approach at common law to assessing damages for PSLA for multiple injuries (whether involving whiplash or not) as articulated by the Court of Appeal in Sadler v Filipiak[2011] EWCA Civ 1728 (“ Sadler”). But any deduction must be made from the damages for the non-whiplash injury because the tariff amount is a statutory fixed sum; and the deduction should not reduce the overall amount of damages to be awarded below the amount that would be awarded for the non-whiplash injury alone (this has been labelled “the caveat”). This was the approach laid down by the majority of the Court of Appeal in these two test cases. Nicola Davies LJ gave the leading judgment, which was agreed with, in a concurring judgment, by Stuart-Smith LJ: [2023] KB 171, paras 1–49. It was also the approach basically adopted, but without the caveat, by District Judge Hennessy at first instance.

Before turning to the relevant legislation, it is important to understand how damages for PSLA are assessed at common law. The general aim of damages for a tort is to compensate the claimant's loss. Compensation means the award of a sum of money which, so far as money can be so, is equivalent to the claimant's loss. The loss may be pecuniary (such as a loss of earnings or medical expenses) where the equivalence to the claimant's loss can be precise; or the loss may be non-pecuniary, such as PSLA, where the sum to be awarded as compensation cannot be precisely equivalent to the loss and where consistency of awards is instead achieved through the application of the scale of values established by decisions in past cases. It is also trite law, as made clear in the classic formulation by Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39, that the aim of compensatory damages is to put the claimant into as good a position as he or she would have been in if no tort had been committed. This has often in the past been described as seeking to achieve “restitution” (and was so described in the written submissions of the claimants and interveners) but, in the modern law, restitution is a term that is primarily understood to be concerned with reversing benefits obtained by a defendant and is, therefore, best avoided as a supposed synonym for compensation.

In respect of PSLA in personal injury cases, it was explained by the Court of Appeal in Heil v Rankin[2001] QB 272 that the scale of values represents what the judges consider to be the fair, just and reasonable sums to award for PSLA. The determination of what is fair, just and reasonable takes into account the interests of claimants, defendants and society as a whole. The Court of Appeal also made clear that, although compensation for PSLA can never be precise, the aim is to provide full compensation.

The need for consistency through past awards in respect of PSLA has traditionally depended on the publication (in, for example, Kemp & Kemp on the Quantum of Damages) of judicial awards listed under the different types of personal injury with brief details of the claimant's circumstances. The bracket of damages for that injury which the previous cases have laid down (adjusted upwards for inflation) has provided the range of award for the particular case before the court. In deciding where within the range the instant case falls (or if, exceptionally, it falls outside the range) the courts have taken account of the claimant's particular circumstances: for example, the claimant may have suffered a great deal of pain over a long period of time or the claimant may have been unable to continue with a particular activity that he or she had previously enjoyed.

In 1992, the Judicial Studies Board (now the Judicial College) produced the Guidelines as an attempt to produce greater consistency of awards and to make the judicial scale of values more easily accessible. The Guidelines set out, in easily understood form, a distillation, from past cases, of the range of awards for various injuries. In the most recent 16 ^th edition, published in 2021, the range runs from a few hundred pounds for minor cuts and bruises through to £403,990 for the most serious injuries.

A question that has concerned the courts for several...