Co-authored by candidate attorney, Katelyn-mae Carter

On 26 March 2024, the Supreme Court for England and Wales reviewed the legal principles applicable in assessing damages in mixed injury claims in terms of English law.

The two claims arose in the County Court in Birkenhead where the two claimants were involved in road traffic accidents which were caused by the negligent driving of other drivers.

The claimants both made claims for pain, suffering and loss of amenities (‘PSLA’) which were caused by whiplash injuries (‘WLIs’) and non-whiplash injuries (‘NWLIs’). The Supreme Court was asked to determine how damages were to be calculated where there were concurrent PSLA claims caused by both WLIs and NWLIs.

It is important to note that under English law, PSLA claims caused by WLIs are regulated in terms of the Civil Liability Act, 2018 and the Whiplash Injury Regulations, 2021 and are limited to a tariffed amount.

On the other hand, PSLA claims caused by NWLIs are determined by way of English common law principles.

There were three possible approaches for the court to consider.

  1. As argued by the defendants: take the WLIs tariff amount and add the NWLI common law damages but only in the event that the claimant can prove that the NWLIs caused non-concurrent PSLA.
  2. As argued by the claimants and the interveners: add together the WLIs tariff amount and the NWLI common law damages together without consideration of a deduction for double recovery for the same loss.
  3. An argued by the claimants in the alternative: add the WLIs tariff amount to the NWLIs common law damages and then standing back to determine if a deduction should be made to reflect any overlap between the two amounts. However, such a deduction should only be made from the NWLI amount and should not reduce the overall amount to less than the NWLI amount on its own.

The Supreme Court determined that the third approach, as determined in the Sadler case, is the correct approach upon 4 grounds. These grounds being that:

  1. This approach supports the presumption that in so far as a statute deviates from the common law, it should be as limited as possible in this departure;
  2. It avoids the risk of double recovery,
  3. It is less complicated; and
  4. It does not rely on exactitudes.