“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. This takes the Sadler approach (by which the whiplash tariff is added to damages set out in common law and then a ‘step back’ taken to account for overlap in injuries).
“The number of mixed injury claims has been increasing year on year and fast approaching 2019 pre-pandemic levels. On the back of the recent 22% increase in the JCG update, the total compensation levels for mixed injury soft tissue claims are likely to increase beyond pre-reform levels and, in the absence of a relative increase to the Small Claims Limit, the recent rise in OIC claims moving to the MOJ portal will continue apace, leading to increased delays and handling costs.
“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 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.”
ACSO
Some thoughts from the Association of Consumer Support Organisations (ACSO);
Responding to the Supreme Court’s unanimous decision to reject the ABI’s Rabot appeal and instead accept the Sadler approach (by which the whiplash tariff is added to damages set out in common law and then a ‘step back’ taken to account for overlap in injuries), Matthew Maxwell Scott, Executive Director of the Association of Consumer Support Organisations (ACSO), said:
“This looks the right call, and is a sensible middle ground which protects consumers both as injured parties and as policyholders. 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.
“It is now down to the wider sector to work together to agree the frameworks which will allow claims to settle quickly. Importantly, it will also take many potential claims out a courts system which is struggling badly.
“But even after this defeat, it would be naive to think that insurers will give up their long-running campaign to remove general damages entirely in lower-value personal injury cases, and so those of us who believe that consumers hurt through no fault of their own deserve proper redress must keep up their guard.
“While it is understandable from a commercial standpoint that the insurance industry felt it had to take this case all the way to the highest court, it would be refreshing if it now applied its laser-like focus elsewhere, for example on reducing frictional costs and improving claims processes.
“Meanwhile we await with great interest the Financial Conduct Authority’s report on how much the whiplash reforms have saved premium holders. As sure as night follows day, we expect the insurers to say that the savings would have been greater if only the legislation applied to non-whiplash injuries, too. As the Supreme Court today confirmed, it does not.”
APIL
APIL has welcomed the clear and final Supreme Court judgment in Hassam v Rabot on the issue of claiming compensation when whiplash is combined with other injuries. People with ‘mixed injury’ claims can claim full common law compensation for their non-tariff injuries at the same time as the statutory tariff payment for the whiplash.
“The erosion of damages for personal injuries has been contained to whiplash, for now. The Civil Liability Act was only ever about whiplash,” said APIL secretary Brett Dixon. The Supreme Court is clear that the principle of full compensation is maintained for the other, non-tariff injuries. This is the final word on the issue, giving injured people and their representatives some much-needed clarity,” he went on.
“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.”
The Supreme Court agreed with a previous ruling by the Court of Appeal last year that people with mixed injuries should receive the whiplash tariff payment plus any additional payment for the non-whiplash injury, but that the court should then take a ‘step back’ and make a deduction for any overlap to avoid overcompensation.
“While today’s result is positive, we maintain that the whiplash tariff itself is grossly unfair. The language used by the Supreme Court highlighted that the tariff amount was not full compensation and was, in fact, undercompensating,” said Mr Dixon.
“It is now over to the OIC to clear the backlog of cases which have stalled while this ruling was pending. Claims can progress and injured people can finally receive their compensation,” he added.
MASS
The Motor Accident Solicitors Society has also offered comment;
Sue Brown, chair of MASS, said:
“Common sense and the common law have prevailed.
The Supreme Court has now unanimously upheld the judgment of the majority in the Court of Appeals and confirmed that nothing in the Civil Liability Act 2018 effects a change in the assessment of damages for non-whiplash injuries. Those injuries should continue to be assessed in accordance with the Common Law and the principles set out in in Sadler v Filipiak, the only differences in claims including whiplash injuries being that no deduction can be made from the whiplash tariff damages, and that any deduction should not take the overall amount of damages below the amount at which the non-whiplash injury has been valued by the court.
So while the level of tariff damages remains far from fair, claimants can now be confident in recovering fair compensation for the non-whiplash injuries they sustain in low value motor accident claims.
With uncertainty and delays having plagued very many claimants waiting for a fairer settlement following motor accidents, we now hope that the judicial system can begin working through the backlog of cases and that justice can finally be dispensed.”
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