The Civil Liability Act 2018 and the Whiplash Injury Regulations 2021

On 31 May 2021, the Whiplash Injury Regulations 2021 (SI 2021/642) came into force, transforming the landscape for personal injury claimants with whiplash injuries in motor vehicle accidents. For claims accruing after that date, the regulations limited the recoverable damages for pain, suffering, and loss of amenity (‘PSLA’) to amounts set out in a tariff.

The tariff values damages for two categories of claim: (i) where there are one or more whiplash injuries and (ii) where there are one or more whiplash injuries accompanied by one or more minor psychological injuries suffered on the same occasion. After a claimant’s injuries have been categorised, the only determinant of damages under the tariff (save for exceptional circumstances) is the duration of the injury.

The regulations have greatly reduced the damages available to claimants in these types of cases. As Lord Burrows notes in the judgment in Hassam, straightforward whiplash injuries with a duration of less than three months now entitle a claimant to £240; prior to the regulations, a claimant could expect to recover £2,450 under the common law by relying on the Judicial College Guidelines.

The Difficulty in ‘Mixed Claims’

It has been a source of frustration for claimants that, for the most part, the application of the tariff is a straightforward and rigid exercise. An exception to this is the debate about the proper way to calculate damages in so-called ‘mixed claims’. These are cases in which a claimant seeks compensation for multiple injuries, where at least one is caught by the tariff, and at least one other is not.

In common law cases, general damages are an assessment in money-terms of the injuries a claimant has suffered: the aim is to return a claimant to the position they would have been in, absent the negligence. Where there are multiple injuries, the Court will make an award which reflects a claimant’s total PSLA; in the vast majority of cases, this means making a lesser award than the claimant would be entitled to if each injury was assessed individually. This is because multiple injuries will usually have an overlapping effect on a claimant’s global PSLA. The correct approach was set out by Pitchford LJ in Sadler v Filipiak [2011] EWCA Civ 1728.

In tariff claims, the court is not concerned with arriving at a figure which fully compensates the claimant for their injuries: Parliament has decided, as a matter of policy, that compensation for whiplash injuries should be less than what would be recoverable at common law.

The question in mixed claims is how the courts should take account of these distinct principles when assessing tariff and non-tariff injuries which have an overlapping impact on a claimant’s PSLA. Until the Court of Appeal ruled on the Hassam cases in January 2023, there was some doubt over how common law and statute should interact in that exercise.

The Court of Appeal Decision

In a majority judgment, the Court of Appeal held that the correct approach was to (i) assess the tariff damages for the whiplash injuries, (ii) assess the common law damages for the non-whiplash injuries; and then (iii) ‘step back’ in order to consider the appropriateness of the award, whilst recognising that the tariff award is smaller than it would be if damages had been assessed under the common law. The Court added the caveat that a final award could not be less than what would have been awarded for the non-tariff injuries if they had been the only injuries the claimant had suffered.

The Three Approaches

Following the defendants’ appeal, the Supreme Court heard submissions on three possible approaches. The defendants argued that the right approach was to start with the tariff amount for the whiplash injuries. Common law damages for the non-whiplash injuries, would only be added to the award where a claimant could establish that the non-whiplash injuries caused ‘non-concurrent’ or ‘different’ PSLA to the whiplash injuries.

The claimant’s primary case also sought to depart from the Court of Appeal decision. Their proposed method was to add the amount for the tariff injuries to the common-law damages for the non-tariff injuries and make no further reduction. The claimant’s alternative case advocated for the approach set out in the Court of Appeal judgment and outlined above.

The Correct Approach

In a judgment handed down on 26 March 2024, the Supreme Court endorsed the decision of the Court of Appeal, and set out the definitive approach to calculating PSLA damages in ‘mixed cases’:

“Where the claimant is seeking damages for PSLA in respect of whiplash injuries (covered by the 2018 Act) and non-whiplash injuries a court should:

(i) Assess the tariff amount by applying the table in the 2021 Regulations.

(ii) Assess the common law damages for PSLA for the non-whiplash injuries.

(iii) Add those two amounts together.

(iv) Step back and consider whether one should make an adjustment applying Sadler. The adjustment (which in this context will almost always be a deduction rather than an addition) must reflect, albeit in a rough and ready way, the need to avoid double recovery for the same PSLA. The court must respect the fact that the legislation has laid down a tariff amount for the whiplash injuries that is not aiming for full compensation: in that respect, the Sadler adjustment is a slightly different exercise than if one were dealing entirely with the common law assessment of damages for multiple injuries.

(v) If it is decided that a deduction is needed, that must be made from the common law damages.

(vi) However, and this is what Nicola Davies LJ described as the “caveat”, the final award cannot be lower than would have been awarded as common law damages for PSLA for the non-whiplash injuries had the claim been only for those injuries.”

The Rejected Approaches

The defendants’ approach was rejected for four reasons. First, there was no indication that parliament sought to alter the common law measure of general damages for non-whiplash injuries. Adopting the defendants’ approach would lead to that result. Second, the task of identifying concurrent and non-concurrent PSLA would be complex and costly. Third, this approach permitted the ‘bizarre’ outcome that a claimant might recover less for a combination of tariff and non-tariff injuries than for only non-tariff injuries. Finally, this approach would lead to a significant departure from the common law, which is contrary to the presumption that legislation affects the common law minimally.

The claimant’s primary approach was rejected because it ignored the problem of double recovery and was contrary to the principle of compensatory damages. This was so despite the tariff awards being said to amount to ‘partial compensation’ for whiplash injuries.


The judgment is a welcome one for claimants who have suffered tariff and non-tariff injuries. There is now no doubt that they are able to recover damages for their non-tariff injuries, without having to surpass the difficult hurdle of proving ‘non-concurrent’ PSLA. The result will also come as a relief to claimant practitioners, many of whom have been adversely affected by the regulations. The judgment has confined their scope to whiplash injuries and means there will be no significant reduction in the profitability of mixed cases.

Written by James Megarry.


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