On Tuesday morning, the Supreme Court will release its judgment in the case of Hassam v Rabot. This ruling is of particular importance to those involved in low-value RTA work. The case concerns the valuation of both tariff and non-tariff injuries together, and specifically, the paragraph 38 caveat in the Court of Appeal’s judgment. This caveat states that any reduction for overlap should not decrease the total amount awarded for PSLA below what the Court would have valued the non-tariff injuries in isolation.
Regardless of the outcome, there is an issue that does not have any legal authority, which is the interpretation of what constitutes a non-tariff injury. It is important for us all to make an effort to comprehend section 1, specifically section 1(3), of the Civil Liability Act 2018.
There is a troubling concern I see often in these medical reports, which is the same phrase “This is a non-whiplash injury. This injury falls within subsection 1.3 Civil Liability Act 2018“.
The phrase is not determinative
I believe housing disrepair practitioners often encounter expert surveyors who identify something as disrepair under s11 of the Landlord and Tenant Act 1985 without providing a clear explanation for their decision.
It is a point which the Court will determine. It may benefit from the opinion of an expert, but given it is a legal question the Court will need sufficient information to be satisfied that the injury “is an injury of soft tissue which is a part of or connected to another injury, and the other injury is not an injury of soft tissue in the neck, back or shoulder of a description falling within [a tariff injury]”.
Soft tissue injuries to ankles and wrists are examples of clear non-tariff injuries, especially when the mechanics can be explained as to how such injuries were sustained.
I read a medical report once that referred to headaches as a non-tariff injury. It did not explain whether the headache symptoms (because that’s what they are, symptoms) were caused by head trauma or secondary to neck whiplash/soft tissue injury.
What should fee earners be doing?
Extra consideration should be given to symptoms/injuries that are suggested to be non-tariff injuries and are not adequately supported by an explanation as to why they are not connected to the neck, back or shoulder.
It is accepted that low-value litigation will also be volume litigation. It will be problematic for fee earners with caseloads in excess of 150 cases to justify significant time on cases, requesting experts clarify/elaborate their non-tariff justifications.
However, I am aware that the Defendants are increasing their challenge to non-tariff injuries, especially at RTA SCT OIC hearings, which are not cost-bearing. If the expert does not explain why an injury or symptom is a non-tariff injury, then revert to the expert and ask to explain. The copy and past stock phrase will fall flat at final hearings.
Fee earners can consider whether non-tariff justification can be justified without an expert opinion. It does not automatically follow that a point regarding the injury can only be answered with an expert opinion. However it will assist if the explanation is that of medical origin, rather than facts within the Court’s knowledge.
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.