Key Facts
- •Part 1 of the Civil Liability Act 2018 and the Whiplash Injury Regulations 2021 significantly reduced damages for whiplash injuries.
- •Two test cases addressed the impact of whiplash reform on damages for non-whiplash injuries suffered concurrently with whiplash injuries.
- •Three approaches to calculating damages were considered: (1) adding tariff amount for whiplash plus common law damages for non-whiplash only if different PSLA; (2) adding tariff amount and common law damages without deduction; (3) adding both amounts then deducting for overlap, ensuring final award not below common law damages for non-whiplash injuries alone.
- •Cases involved claimants with whiplash and non-whiplash injuries, assessed at first instance using the third approach (Sadler deduction).
- •Defendants appealed, arguing for the first approach; claimants cross-appealed, primarily for the second, secondarily (in one case) arguing the Sadler deduction was too large.
Legal Principles
Damages for tort aim to compensate claimant's loss, achieving 'restitution' by putting claimant in as good a position as if no tort occurred.
Common Law
PSLA damages at common law are assessed using a scale of values, aiming for full compensation despite imprecision; consistency is achieved through past awards and guidelines.
Common Law, Judicial College Guidelines
For multiple injuries, the Sadler approach requires standing back from individual figures to consider whether the overall award reflects the combined effect of injuries, adjusting for double-counting.
Sadler v Filipiak [2011] EWCA Civ 1728
Section 3(2) of the 2018 Act specifies the tariff amount for whiplash injuries; Section 3(8) allows for damages reflecting the combined effect of whiplash and non-whiplash injuries, subject to the tariff limits.
Civil Liability Act 2018
Statutory interpretation requires ascertaining meaning of words in light of context and purpose; departures from common law should be minimal.
Modern Statutory Interpretation
Outcomes
Defendants' appeals dismissed; claimants' cross-appeals dismissed except for a modification in one case where the Sadler deduction was excessive.
The Court adopted the third approach, finding it consistent with Section 3(8) of the 2018 Act, the Sadler principle, and the limited purpose of the whiplash reforms. The first approach would have extended the Act's scope improperly, and the second ignored the need to avoid double-recovery.
The Court rejected the Master of the Rolls' dissenting judgment favoring the first approach.
The dissenting judgment's emphasis on the wording of section 3(2) was deemed unwarranted, its proposed method too complex and potentially leading to absurd outcomes (lower damages with both injuries than non-whiplash alone). It also created unnecessary complexity and cost.