Adrian Higgins provides a case note on Hassam v Rabot [2024] UKSC 11.

Hassam v Rabot [2024] UKSC 11

The Supreme Court’s decision in this case was given yesterday (26 March 2024).

Lord Burrows gave the only judgment with which the other justices agreed.

The Supreme Court dismissed the Defendants’ appeals and agreed with the majority in the Court of Appeal. The court’s primary reasons for doing so were:

1. The question raised in this case was one of statutory interpretation. It is now well-established that the courts should ascertain the meaning of words used in statutes in the light of their context and the purpose of the provisions.
2. The wording of section 3(2) of the Civil Liability Act 2018 makes it clear that the tariff amount is confined to damages for PSLA “in respect of the whiplash injury or injuries”. That wording “plainly” does not extend the tariff amount to PSLA in respect of non-whiplash injuries.
3. The only express reference in the 2018 Act to damages for non-whiplash injuries is in section 3(8) which says: “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 pain, suffering and loss of amenity that reflects the combined effect of the person’s injuries (subject to the limits imposed by regulations under this section).” The opening words, and the reference to an amount “that reflects the combined effect”, indicate that the statute is, in general, not departing from the standard common law approach to assessing damages for multiple injuries. The closing bracketed words show that the common law approach must not be applied in such a way as to be inconsistent with imposing the tariff amount laid down in the 2021 Regulations. It can therefore be seen that the approach of the majority in the Court of Appeal follows naturally from section 3(8).
4. That the approach of the majority in the Court of Appeal is the correct interpretation of the statutory language is supported by the well-established presumption that, in so far as a statute is departing from the common law – which the 2018 Act clearly is – that departure should be presumed to be as limited as possible.
5. The approach of the majority in the Court of Appeal is further supported by considering the purpose of the legislation. The preamble to the 2018 Act reads that it is “to make provision about whiplash claims…”.  More specifically, the explanatory material clarifies that the purpose was to discourage false or exaggerated whiplash claims and to reduce the costs associated with whiplash claims and hence to help reduce motor accident insurance premiums. As part of the same package of reforms, there was introduced, as a further means of reducing the costs of small road accident claims, a bespoke portal process (the OIC portal) aimed at providing a mechanism for the quick and easy resolution of such claims. There is nothing at all to indicate that the purpose of the 2018 Act was to extend the lowering of PSLA damages beyond whiplash claims.

At paragraph 51 of the judgment Lord Burrows confirms and as he puts it “fills out” what Davies LJ said at paragraph 38 of her judgment in the Court of Appeal. The approach the court should therefore take in a case where a claimant is seeking damages for PSLA in respect of whiplash injuries (up to 24 months duration) and non-whiplash injuries is:

1. Assess the tariff amount by applying the table in the 2021 Regulations.
2. Assess the common law damages for PSLA for the non-whiplash injuries.
3. Add those two amounts together.
4. Step back to consider whether one should make an adjustment applying Sadler. The adjustment (which in this context will almost always be a deduction rather than an addition) must reflect, albeit in a rough and ready way, the need to avoid double recovery for the same PSLA. The court must respect the fact that the legislation has laid down a tariff amount for the whiplash injuries that is not aiming for full compensation: in that respect, the Sadler adjustment is a slightly different exercise than if one were dealing entirely with the common law assessment of damages for multiple injuries.
5. If it is decided that a deduction is needed that must be made from the common law damages.
6. The final award cannot be lower than would have been awarded as common law damages for PSLA for the non-whiplash injuries had the claim been only for those injuries.
7. Finally, where the exceptionality requirement applies (whiplash injuries are exceptionally severe or where the person’s exceptional circumstances increase the PSLA), the tariff amount being assessed at the first step may be increased by up to 20%.

26th Mar 2024

Adrian Higgins

Call 1990