The Surpreme Court handed down its long-awaited decision of Hassam & Anor v Rabot & Anor [2024] UKSC 11.
Understandably, it was a decision that would have impacted thousands of claims, if not more, irrespective of the outcome. Like Gavin Edmondson Solicitors Ltd v Haven Insurance Company Ltd [2018] UKSC 21, it was most certainly a David v Goliath battle. My understanding is that there are a great number of claims that are stayed or lying in wait for this decision. No doubt those cases will be proceeding forward.
Where it all started
The two case began life in the County Court at Birkenhead and appeared before DJ Hennessy. It became the gold standard, in the absence of a binding authority, for parties to consider her written judgment to be the only guidance available.
The Defendants sought permission to appeal and a Circuit Judge leapfrogged the appeal to the Court of Appeal. They argued that additional damages (to the tariff award) should consisted only of elements of the PSLA from the non-whiplash injury could be identified as not being overlapped with the whiplash. This would lead to very minor uplifts on the tariff award.
The Claimants cross-appealed arguing that there should be no reduction at all.
Court of Appeal
The majority decision (Nicola Davies LJ and Stuart Smith LJ) dismissed both the Defendant’s appeal and Claimant’s cross-appeal. Instead favouring an approach in the middle which I regularly referred to as the para 38 caveat:-
38. 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
This would, in cases where the whiplash award was small and the non-tariff award high, eradicate the whiplash award. It is important to note that the Master of the Rolls gave a dissenting Judgment he would have adopted the Defendant’s approach and remit the matter to the County Court to be reassessed under what he said was the correct approach.
Naturally, and as expected, the Defendants Appealled to the Supreme Court and the Claimants cross-appealled also.
Supreme Court
For all intents and purposes, the Supreme Court endorsed the Court of Appeal’s approach.
The Supreme Court unanimously rejected the Defendant’s approach and the Claimant’s primary approach. The second position of the Claimant was for the Supreme Court to adopt the Court of Appeal’s approach.
What was the paragraph 38 caveat is now the paragraph 52 caveat:-
51. Having explained why the third approach is the correct approach, including explaining why the other two approaches are flawed, it may be helpful to those applying this judgment to spell out precisely what that correct approach requires. In this respect, I am confirming and filling out what Nicola Davies LJ said at para 38 of her judgment (see para 32(vi) above).
52. Where the claimant is seeking damages for PSLA in respect of whiplash injuries (covered by the 2018 Act) and non-whiplash injuries a court should:
(i) Assess the tariff amount by applying the table in the 2021 Regulations.
(ii) Assess the common law damages for PSLA for the non-whiplash injuries.
(iii) Add those two amounts together.
(iv) Step back and 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.
(v) If it is decided that a deduction is needed that must be made from the common law damages.
(vi) However, and this is what Nicola Davies LJ described as the “caveat”, 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.
Consideration
The Supreme Court is right. Imagine the situation whereby a Claimant is better compensated because they didn’t suffer a whiplash injury. I don’t think it would be a situation where a Claimant denies suffering whiplash, and the Defendant seeks to prove there was whiplash. I believe it would be a case that the Claimant would not elect to claim for the whiplash, and the Defendant would argue that a Claimant could elect to claim whiplash.
I was of the view that maybe the Supreme Court would find some midway ground. If Nicola Davies LJ believed that total damages could not be reduced to less than what the non-tariff awards would have been in isolation, then maybe the Supreme Court would say that it must not be less than 75% or 50% of the non-tariff awards.
It would be an arbitrary approach but it could have been a potential option. Nevertheless that was not what happened and the Court of Appeal’s approach has been endorsed entirely.
There are circumstances where Hassam would not apply. For example, where a specific phobia in travel has developed. It would exceed beyond the definition of a minor psychological injury that it does not become an uplift in the Whiplash Regulation. It would also, however, flow from the accident, rather than the injury. Sadler v Filipiak & Anor [2011] EWCA Civ 1728 reminds us that there may not be any overlap to speak of:-
35. In this case there was in my view no significant overlap between the psychological and physical damage suffered. The appellant’s PTSD arose not from the perception of the injuries but from the horror of the accident. The grief reaction was an important component of the appellant’s psychological suffering. It arose from the loss of her friend in the same horrifying accident. There was, however, by reason of the nature of the judge’s approach, an overlap created by the separate awards in which scarring was reflected. There were in all three separate assessments which represented either in whole or in part an allowance for the effect of scarring. There was also, it seems to me, a significant degree of overlap between individual orthopaedic injuries. Clearly the principal injury was that to the appellant’s left femur. It was the consequence of that injury which caused a prolonged period of recovery.
As for other mixed injury cases, continue as you were post EWCA!
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.