Supreme Court in Hassam v Rabot [2024] confirms approach to PSLA calculations in whiplash cases

The Supreme Court has handed down the judgment in Hassam and Anor v Rabot and Anor [2024] UKSC 11. The case concerned how damages for pain, suffering and loss of amenity (‘PSLA’) should be assessed when caused by whiplash and non-whiplash injuries.

The Civil Liability Act 2018 fixed the damages awarded (‘the tariff amount’) for whiplash injuries regarding PSLA. Provision for variation in the sum awarded is provided by reference to the duration of the whiplash.

District Judge Hennessey added the tariff amount to the PSLA for non-whiplash injuries and then applied a reduction to avoid over-compensation for concurrently caused PSLA.

The defendant’s appeal argued that the tariff amount included a PSLA award for the whiplash and non-whiplash injuries so that only PSLA caused exclusively by non-whiplash injuries could be compensated in addition to the tariff amount.
The claimant’s cross-appeal argued that the tariff amount should simply be added to the PSLA damages for the non-whiplash injuries without deduction for overlap.

A majority decision of the Court of Appeal upheld the District Judge’s decision. Further information on the Court of Appeal decision can be found in this 2023 article authored by Darryl Allen KC.

The Supreme Court unanimously dismissed the appeals and cross-appeals. The District Judge was right to add the tariff amount to the PSLA for non-whiplash injuries and then apply a reduction to avoid over-compensation for concurrently caused PSLA.

This approach is correct because the statutory intent of the 2018 Act sought to reduce damages for whiplash injuries and not other types of injury. Equally, it is important to mitigate against over or under-compensation.

Lord Burrows set out in paragraph 52 a step-by-step approach to resolving the issues:

(a) Assess the tariff amount by applying the table in the 2021 Regulations.
(b) Assess the common law damages for PSLA for the non-whiplash injuries.
(c) Add the two amounts together.
(d) Step back and consider whether one should make an adjustment applying Sadler v Filipak [2011] EWCA Civ 1728. The rough and ready adjustment (which will almost always be a deduction rather than an addition) must reflect the need to avoid double recovery for the same PSLA.
(e) If a deduction is required, it must be made from the common law damages.
(f) Ensure the final award is not lower than what would have been awarded as common law damages for PSLA for the non-whiplash injuries had the claim been only for those injuries.

With thanks to Dan Jacklin, a Pupil at Farrar’s Building. For further information or to instruct any of our Members, please contact our Clerking Team.

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