The Supreme Court has handed down its judgment in appeals centred on how mixed-injuries claims should be valued, and the reaction has been a mixed bag as well.
In Hassam v Rabot, the claimants and the defendants advocated three different approaches to valuing claims that are a combination of whiplash and non-whiplash injuries.
The Supreme Court rejected the first approach (advocated by the defendants) and the second approach (advocated by the claimants as their primary case and by the interveners – the Association of Personal Injury Lawyers or APIL and the Motor Accident Solicitors Society – as their sole case). The third approach (advocated by the claimants as their secondary case) was deemed the correct way to value mixed-injuries claims by both the Court of Appeal majority and the Supreme Court.
As noted by Lord Burrows in the March 26 Supreme Court judgment, below are the three approaches cited in the case.
“Such an adding together, standing back, and deduction is in line what has been the standard approach at common law to assessing damages for PSLA for multiple with injuries (whether involving whiplash or not),” Lord Burrows stated.
“But any deduction must be made from the damages for the non-whiplash injury because the tariff amount is a statutory fixed sum; and the deduction should not reduce the overall amount of damages to be awarded below the amount that would be awarded for the non-whiplash injury alone.”
The Association of British Insurers (ABI), back in February, declared: “The Court of Appeal judgment has the effect of bringing injury values back close to pre-whiplash reform levels. It’s also likely to continue to drive up the number of claims involving additional minor physical injuries, and risks pushing more claims over the £5,000 damages threshold for legal costs.
“This significantly reduces the intended costs benefits of the whiplash reform package, and does not help to reduce pressure on motor premiums. It has been important therefore to test that judgment and, in our view, go back to the proper interpretation of the legislation. In co-ordination with the defendant insurers in the test cases, we sought and received permission from the Supreme Court to appeal the Court of Appeal judgment.
“Given rising costs in many other areas for motor insurers, such as the increase in the cost of vehicle repairs, this will be an important case. An outcome which reflects the need for fair and proportionate compensation would help realise the original, intended benefits of the reforms and ultimately help hard-pressed, premium-paying motorists.”
The ABI has yet to comment on the Supreme Court decision, but one insurer has already expressed disappointment.
“We’re disappointed with the Supreme Court’s decision to maintain the outcome on mixed injuries handed down by the Court of Appeal in 2023,” LV= General Insurance technical claims director Michael King commented via email. “We supported the appeal to help provide certainty for claimants and defendants, and to clarify an important point of principle given the dissenting judgment from The Master of the Rolls in the Court of Appeal case.
“We feel this outcome and the original intent of these reforms has been watered down, as the level of award for a mixed-injury claim remains close to the sum that would have been awarded before the whiplash reforms came into force. In addition, we’re seeing the proportion of mixed-injury claims increasing to higher levels than before the reforms.
“This outcome may have a further impact on the cost of motor insurance, at a time where we’re doing everything we can to keep premiums as low as possible for customers.”
King was referring to Sir Geoffrey Vos MR, who had disagreed with the Court of Appeal’s majority view and supported the ABI’s position.
For APIL, the clarity and finality are to be appreciated, despite the whiplash tariff itself being “grossly unfair,” as described by APIL secretary Brett Dixon.
“The Supreme Court is clear that the principle of full compensation is maintained for the other, non-tariff injuries,” Dixon noted. “This is the final word on the issue, giving injured people and their representatives some much-needed clarity.
“A play by insurers to reduce injured people’s compensation to just the whiplash tariff payment would have been a huge affront to the principle of full and fair compensation had it succeeded. It would have allowed insurers to circumvent their responsibilities to victims of negligence beyond what had already been decided by the government when it introduced the whiplash tariff.”
Atlantic Chambers, whose member Shannon Eastwood appeared on behalf of the claimants, had this to say: “The Supreme Court’s decision provides a common-sense approach to the assessment of damages by integrating the tariff awards into the existing common law system. This means that any non-whiplash injuries should continue to be assessed in the usual way with reference to the Judicial College Guidelines and comparable quantum cases.”
For Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations (ACSO), the Supreme Court judgment made sense.
“This looks the right call, and is a sensible middle ground which protects consumers both as injured parties and as policyholders,” he asserted. “The insurer case always looked weak, as the wording of the Civil Liability Act is unambiguous and if they want this changed it is to Parliament they must look, not to the courts.
“It’s good news that the wheels of justice have moved quickly here. With the judgment affecting hundreds of thousands of people each year, the huge backlog of cases can now start to be cleared and people get the compensation they are due.
“Moreover, insurers will be able to reserve more accurately and use this to bring average premiums down from their record highs.”
Risk assessment firm Verisk, meanwhile, expressed gratitude for the outcome.
Simon Bradshaw, head of personal injury at Verisk, said in an emailed statement: “We are grateful to the Supreme Court for this speedy judgment, which gives a clear steer on how to assess and compensate claimants who are seeking redress for a whiplash plus other injuries sustained in a motor accident…
“We look forward to supporting the industry to focus attention on progressing thousands of mixed-injury claims that are currently held up in the OIC (Official Injury Claim) portal, pending the Supreme Court outcome, through to settlement.
“It is vital that the claims industry – defendant and claimant side – works together to make progress. Industry cooperation is the key to an efficient and effective system for processing mixed-injury claims.”
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