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Recognising Whiplash 3 Years On
A guide for Claimants in light of the Supreme Court decision in Hassam & Anor v Rabot &
Anor [2024] UKSC 11
Claimants can claim full common law compensation for their non-whiplash injuries as well as
as the statutory tariff award for whiplash, the Supreme Court has ruled, supporting the Court
of Appeal decision in Hassam & Anor v Rabot & Anor [2023] EWCA Civ 19.
and 6 are rather ambiguous and require a far more
complex answer than ‘yes’ or ‘no’. Therefore,
Claimants have been left to pick up the burden of trying to ascertain whether their injuries classify as
whiplash injuries or non-whiplash injuries.
Although the legal intricacies of Road Traffic Accidents
are cemented in statute with the Road Traffic Act
1988, the law is ever changing through precedents established in court and government reforms. Change
at an arguably cosmic level came with the Whiplash
Reforms that were implemented by the government
on 31 May 2021. The reforms changed the landscape
of whiplash claims for Claimants and Legal Practitioners alike, and 3 years on, only recently have the
Supreme Court decisions in Rabot vs Hassam and
Briggs v Laditan provided much needed certainty.
Indeed, it is not uncommon that Claimants will have
been involved in a collision where they have suffered
whiplash injuries to their neck as well as other injuries,
perhaps to their right knee and left arm. The
Claimant is then left to ask: Well, am I to go through
the OIC, or can I instruct a solicitor to pursue my
claim? The Claimant’s exertions are only worsened
when it is revealed that had they not claimed for their
whiplash injury but only the other injuries, they could
have received a higher compensation amount. This is
because whiplash compensation under the Reforms is
determined by a tariff system based purely on how
long the injury lasted. Non-whiplash injury compensation, by contrast, is set by the Court with common
law damages for Pain Suffering and Loss of Amenity
(PSLA) being awarded and guided by the Judicial
Court Guidelines.
To appreciate the significance of these decisions, it is
important for Claimants to understand the new normal, as it were. Over 3 years have now passed since
the May 2021 reforms were implemented, heralding
the end of what was an unofficial transition period
where Claimants could still be eligible to pursue a
whiplash claim under the old rule whilst others became guinea-pigs for the newly implemented Official
Injury Claims portal (OIC).
The OIC is a free service which works on behalf of the
Ministry of Justice to allow drivers and passengers
involved in Road Traffic Accidents to seek compensation independently without legal help.
In Hassam v Rabot, the Claimants had suffered both
whiplash and non-whiplash injuries and the Court
had to consider how to approach the valuation of low
value motor claims involving both injuries. The Court
of Appeal and the Supreme Court provided certainty
as they ruled that claimants can claim full common
law compensation for their non-whiplash injuries as
well as the statutory tariff award for whiplash, although the Court also applied the approach in Sadler
v Filipiak [2011] EWCA Civ 1728 which encouraged
parties to then “step back” and assess the overall
award to avoid double recovery. In Hassam, it was initially District Judge Hennessey who adopted the approach to combine the whiplash tariff amount with
the PSLA for non-whiplash injuries before applying a
reduction to avoid over-compensation for concurrent
PSLA that had been caused by both the whiplash and
non-whiplash injuries. This decision was appealed
with the defendants and claimants seeking to lessen
and increase the compensation that the Claimants
could receive respectively. The Supreme Court unanimously dismissed these appeals and upheld DJ Hennessey’s decision (at [52] in Lord Burrows’
judgement) which mirrored Nicola Davies LJ (at [38]
of her Court of Appeal judgement), setting out a stepby-step approach to clearly determine the amount of
damages that a Claimant should receive when suffering whiplash and non-whiplash injuries.
For adults bringing Personal Injury claims, you are
generally required to issue proceedings at Court
within 3 years from the accident date. After this time
you may be out of time and unable to bring a Personal
Injury compensation claim. However, in certain cases,
different time limits apply which may be longer or
shorter depending on the circumstances. The 3 year
rule means that we have now reached a point whereby
practically all new adult whiplash claims are being
pursued through the OIC.
The Whiplash Reforms set out whether or not you as
the Claimant are eligible to have your claim processed
through the OIC.
Your claim MUST go through the OIC if:
1. You are over 18.
2. You were injured in a road traffic accident.
3. The accident occurred on or after 31 May 2021.
4. You suffered whiplash injuries.
5. You were a driver or passenger of a motor vehicle
(this does not include motorbikes and scooters).
6. Your injuries are worth less than £5,000 and the
total value of your claim is less than £10,000.
Now, whilst this criteria appears clear in principle, you
would not be mistaken for considering that points 4
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