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.

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.

To understand 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.

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 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.

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 are 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.

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 upheld 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 step-by-step approach to clearly determine the amount of damages that a Claimant should receive when suffering whiplash and non-whiplash injuries.

The decision marks a keystone moment in bringing certainty to mixed injury claims in knowing that you will receive appropriate compensation. Yet, the predicament persists that Claimants want clarity in knowing whether they should be claiming through the OIC or through a firm of Solicitors, especially if they have suffered obvious whiplash injuries and perhaps less overt non-whiplash injuries. It is therefore important to seek clarity before you claim, and our experienced team at Hodge Jones & Allen is on hand to advise you on whether your Road Traffic Accident matter is something that we can assist you with. Claims can leave the OIC process if they are no longer eligible to proceed through it, but this delay risks Claimants missing out, especially if they approach the 3 year limitation period after navigating administrative delays and unnecessary uncertainty.

If you have suffered injuries in a road traffic accident that you think could be above the OIC threshold, or simply want clarity on your injuries, speak to a member of our personal injury team who can point you in the right direction. Call now on 0330 822 3451 or request a callback.