GB Technical Director, Andy Sewell provides a Mixed Injury Update following the Supreme Court Decision made on Tuesday.

The Supreme Court this Tuesday handed down its judgment in Hassam and another (Appellants) v Rabot and another (Respondents) on the mixed injury valuation issue, and unanimously have dismissed the appeal put forward by the ABI, (full judgment attached and can be found here Hassam and another (Appellants) v Rabot and another (Respondents) (supremecourt.uk))

The Calculation for such claims will follow that set down in the original trial, and the extract from the conclusion in the judgement (paragraph 52) is below;

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:

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 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.
5. If it is decided that a deduction is needed that must be made from the common law damages.
6. 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.

There has been commentary previously on the number of claims that currently sitting in limbo within the Official Injury Claim Portal (OICP), it can be expected that many claims with additional injuries to the whiplash that may have been awaiting this judgment will now be disclosed and with c65% of all claims submitted to the OICP having additional injuries claimed this number will not be insignificant.  In addition to the above we also now have the updated 17^th edition of the Judicial College (JC) Guidelines published.  This will no doubt put upward pressure on negotiation of settlements and pressure on defendants to justify offers being made where deductions have been made for the double recovery for the same PSLA. 

As previously mentioned we also will see the whiplash tariff itself reviewed this summer as such in claims involving both whiplash and non-whiplash injuries we are likely to see more arguments stating that the valuation is above the £5,000 Small Claims Track limit currently applicable and with that the ability to recovery legal fees against the paying party. 

One of the areas of importance for defendant claim handling is ensuring that causation and the mechanics of the additional injuries claimed are genuine and that the medical expert has correctly assessed the impact on the PSLA to the claimant.

The ABI issued a ten step plan to combat the rising costs of motor insurance cover, part of this included amending the current tariff to be extended to cover other injuries to knees, sprained ankles and the like and also a call to increase the Small Claims Track limit in line with inflation.

Andrew Sewell  UK Technical Director  Andrew_Sewell@gbtpa.com