On appeal from [2023] EWCA Civ 19

This appeal arises from two claims in the County Court in Birkenhead. Both claimants were involved in road traffic accidents caused by the negligent driving of other drivers (the defendants). Both claimants suffered PSLA caused concurrently by both WLIs and NWLIs. The 2018 Act set the level of compensation payable for WLIs (including PSLA caused by WLIs) through the tariff award. Compensation for NWLIs (including PSLA caused by NWLIs) is determined by applying common law principles. The dispute centres on the approach a court should take to compensation for PSLA caused by both WLIs and NWLIs.

The County Court held that the proper approach was to: (a) determine the nature of each injury; (b) assess the compensation for each injury in accordance with the appropriate regime (the tariff award for a WLI and the common law for a NWLI); (c) add these values together and then step back to assess whether the total amount would over- or under-compensate the claimant for the total PSLA that they suffered; and (d) if appropriate, make an adjustment to the total to avoid any such over- or under-compensation. The Court of Appeal dismissed the defendants' appeal and the claimants' cross-appeal. The defendants now appeal, and the claimants cross-appeal, to the Supreme Court.

The issue is:

How should a court assess damages for pain, suffering and loss of amenity ("PSLA") in the tort of negligence, where the claimant suffered PSLA caused by both: (a) a whiplash injury ("WLI") which comes within the scope of the Civil Liability Act 2018 (the "2018 Act") and therefore attracts a fixed "tariff award"; and (b) a non-whiplash injury ("NWLI") which does not attract a tariff award?

The Supreme Court unanimously dismisses the appeals and the cross-appeals.

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