Today’s judgment in the cases of Hassam v Laditan and Rabot v Briggs provides further certainty on how law firms and insurers approach the valuation of low value motor claims involving a mixture of whiplash and non-whiplash injuries.
The case centred around how a court assigns value to claims within the Official Injury Claim (OIC) portal where there is both a whiplash injury subject to the OIC tariff and other injuries which are not. The latest data suggests that around two-thirds of cases in the portal are mixed injury claims.
The Court of Appeal had decided the case on a split decision of 2 judges to 1, with the majority supporting valuing both injuries separately in accordance with the OIC tariff for the whiplash injury and common law principles for the non-whiplash injury.
Bott and Co welcomes the news that the Supreme Court has today unanimously rejected the appeal and re-affirmed the Court of Appeal’s decision.
David Bott, Senior Partner, comments:
”As Lord Burrows said in his leading judgement, “Although the sums at stake in these two cases is small, it is clear that many thousands of cases are potentially are affected by the decision”.
It is easy to dismiss lower value claims as being in some way trivial, but the fact that they are commonplace should not undermine their importance to anyone who has had the misfortune to be involved in a road traffic accident.
The Judgement of the Supreme Court, agrees with the approach laid out by the Nichola Davies LJ in the Court of Appeal, which sets out the following way of calculating a mixed injury claim.
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.
A good day for common sense. A good day for claimants. A good day for clarity. ”
It is easy to dismiss lower value claims as being in some way trivial, but the fact that they are commonplace should not undermine their importance to anyone who has had the misfortune to be involved in a road traffic accident.