Clarity for whiplash claimants after UK Supreme Court judgment

Whiplash is a type of injury to the neck, shoulders and back due to forceful, rapid back-and-forth movement of the neck and upper body – the name comes from the movement’s likeness to the cracking of a whip. While most people think of whiplash arising in the context of a rear-end shunt to a vehicle, it can also occur through sports accidents, physical abuse, or other accidents.

Unsurprisingly, whiplash injuries do not always occur in isolation. For example, a driver might also injure their wrist if the steering wheel is jerked quickly at the point impact; or a knee might be impacted against the dashboard if there is not much space.

However, this factor was not considered by Parliament when it was reforming the laws around compensation for whiplash injuries which came into force in May 2021.

Samantha Pegg, a paralegal in the Geoffrey Leaver personal injury team explains that; ‘As a result, insurers have taken advantage of the lack of guidance by putting forward derisory settlement offers in claims for multiple injuries which include whiplash. Meanwhile, a backlog of mixed whiplash injury claims has built up while a test case progressed through the court system.’

‘Thankfully for our clients, the judgment of the UK Supreme Court in regard to Hassam and another (Appellants) v Rabot and another (Respondents) has clarified that claimants should not be penalised just because one of their injuries is whiplash.’

Background

For road traffic accidents which have occurred in England or Wales since 31 May 2021, the Whiplash Reform Programme aimed to tackle the high number and costs of whiplash claims and the consequent impact on the cost of motor insurance premiums.

The new rules included:

  • a fixed tariff of compensation for whiplash injuries that last up to 2 years, with five bands and fixed amounts which depend on the severity of the injuries; and
  • a requirement for all whiplash claims to be supported by medical evidence.

After the new rules came into force, it became clear that opinions differed on how the rules should be interpreted when whiplash was one of a number of injuries resulting from the same accident.

In calculating the level of compensation which a client should be entitled to, a solicitor normally refers to a schedule of damages, called the Judicial College Guidelines, for the particular injury. For example, a wrist injury which lasts six months might be entitled to compensation of around £2,500 (although many factors need to be taken into account).

Logic would appear to dictate that (in simplified terms) this amount should be added to the respective fixed amount under the relevant tariff for the whiplash injury (say £470). Depending on circumstances, given that the injuries arose from a single accident, there might need to be a minor adjustment to cover any overlap – for example when considering compensation for being unable to play sport or do gardening.

In contrast, the insurance companies (who always wish to pay out as little as possible) have been taking the approach that the whiplash injury was the main event and so should account for the vast majority of compensation (i.e. £470). They took the view that only a minor additional contribution would need to be made to compensate for the wrist injury.

Since the whiplash reforms came in, personal injury lawyers have seen compensation offers from insurers that fall far below a fair level of compensation for the pain, suffering or loss of amenity suffered by accident victims.

The UK Supreme Court judgment

The question of which approach was correct arrived at the UK Supreme Court in February 2024, where it was recognised that thousands of cases would be affected by the decision.

The question at issue on this appeal is how should damages for pain,

suffering and loss of amenity (“PSLA”) be assessed, where that PSLA was caused by both a WLI and a non-whiplash injury (“NWLI”) suffered in the same road traffic accident?

Looking back through the evidence of all the parliamentary debates, it was clear that the Government had no wish to cover non-whiplash injuries with the new reforms. Consequently, the Supreme Court unanimously agreed with the personal injury solicitors’ approach and disagreed with the insurers.

Lord Burrows summarised, step by step, the correct approach. Where a claimant

seeks damages for a whiplash injury and a non-whiplash injury from the same accident, a judge should:

(i) assess the tariff amount for the whiplash injury;

(ii) assess the common law damages for the non-whiplash injury;

(iii) add these amounts together;

(iv) step back and consider whether an adjustment to the total is required to avoid over- or under-compensation for concurrently caused for pain,

suffering or loss of amenity;

(v) make any such adjustment to the common law damages (not the tariff amount, which is fixed); but

(vi) ensure that the total damages award is not lower than would have been awarded as common law damages for the non-whiplash injury if the claimant had made no whiplash injury claim.

‘This is good news for the many claimants who have been waiting for their claim to progress. This judgment from the Supreme Court provides welcome clarity for cases where there are other injuries alongside whiplash,’ says Samantha.

Contact us

To find out more about how our personal injury team may be able to help you claim compensation following an accident that was not your fault, please contact Geoffrey Leaver Solicitors on 01908 689375 or via email at legal@geoffreyleaver.com to arrange a free and no obligation initial consultation.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

 

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Samantha Pegg | Paralegal

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