I posted on LinkedIn about the news (reported initial in Legal Futures) that the insurers in Hassam & others v Rabot & others [2023] EWCA Civ 19 had secured permission to appeal from the Supreme Court.
I do not deal with whiplash claims in a litigation capacity but I am instructed regularly as an advocate in whiplash claims.
This is for those who don’t know about how whiplash and non-whiplash injuries are valued by the Courts and what the Supreme Court will be considering.
FYI, I appreciate Rabot, Briggs and Whiplash seems like a name for a weird personal injury law firm.
How is whiplash quantified?
The Civil Liability Act 2018 requires Courts, when determining an award for PSLA for whiplash victims on or after 31st May 2021 to only award a fixed sum as prescribed by the Lord Chancellor. The current tariff is contained within the Whiplash Injury Regulations 2021.
Those injuries must be ‘whiplash’ which are broadly described as injury to the tendons, ligaments and/or muscle of the neck, shoulder and/or back. It will also include any other part of the body that is connected to the neck, shoulder or back by a tendon, ligament or muscle.
Therefore bicep/tricep pain is likely to be attributed to a shoulder injury but a knee injury is not.
If the whiplash injury was less than two years then an award is given as per the tariff, including any minor psychological injuries plus the option for an uplift in exceptional circumstances.
Non-Tariff injuries
Occasionally injuries sustained in a road traffic accident (not motorcyclists, who are exempt) are not captured by the tariff and they are to be assessed in the normal common law manner (the Court considers the Judicial College Guidelines and makes an award for damages.
One would then get the award for the whiplash and the non-tariff award and put them together.
As every personal injury practitioner knows, the Court has to consider an overlap reduction as per Sadler v Filipiak [2011] EWCA Civ 1728. The question was how was to consider overlap.
Some Judges will take the main injury and uplift accordingly. Some one could have a six month whiplash injury (obtaining a modest award) with a three month knee injury. The whiplash would be the main injury and the Court would uplift accordingly.
Battle at Birkenhead
Although these arguments were being made across England & Wales, the well known arena was at the County Court in Birkenhead where DJ Hennessy gave some written Judgments. Two of these cases were leapfrogged to the Court of Appeal.
DJ Hennessy’s approach was to deal with the assessment in the same manner as she would with any award for PSLA. She took the injuries, worked out a figure and as per Sadler took a step back and adjusted accordingly.
The Defendant insurers contended that the whiplash tariff should be uplifted modestly. Two cases were appealed (Briggs & Rabot, and strictly speaking there are cross appeals etc.) and those case leapfrogged to the Court of Appeal.
The Court of Appeal
The majority decision was in keep with that with DJ Hennessy’s approach, with a small caveat:-
It follows that the approach of the court to an assessment of damages in respect of a tariff and non-tariff award where concurrently caused PSLA is present is that the court should:
(i) assess the tariff award by reference to the Regulations;
(ii) assess the award for non-tariff injuries on common law principles; and
(iii) “step back” in order to carry out the Sadler adjustment, recognising that the sum included in the tariff award for the whiplash component is unknown but is smaller than it would be if damages for the whiplash component had been assessed applying common law principles.
There is one caveat, namely that the final award cannot be less than would be awarded for the non-tariff injuries if they had been the only injuries suffered by the claimant.
para 38.
Master of the Rolls dissented, essentially saying that this was not the purpose of the Whiplash Reforms and the tariff awards could not be topped up by claiming for other injuries.
The Supreme Court, now having granted permission, believe the issue ought to be considered. It should not be a surprise.
What will the Supreme Court consider?
The actual issues will be stated in the listing once available (usually in the month or two before the cases is heard) but I expect it will be to consider whether the approach and paragraph 38 caveat is the correct approach.
It will be far reaching because I expect further cases will be stayed pending conclusion of the same.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.