We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
Insights
06/08/2025
By Jon Wong and Alice Reeves
The Whiplash Injury Regulations 2021 introduced tariff amounts for Road Traffic Accident-related whiplash injuries with a duration of up to two years. Regulation 2(1)(b) of the Whiplash Injury Regulations 2021 (amended by The Whiplash Injury (Amendment) Regulations 2025) specifies tariff amounts for:
“the total amount of damages for pain, suffering and loss of amenity payable in relation to both one or more whiplash injuries and one or more minor psychological injuries suffered on the same occasion as the whiplash injury or injuries.”
It is not uncommon for claimants to argue that their psychological injury exceeds the threshold of a ‘minor psychological injury’, thereby justifying a non-tariff award for pain, suffering, and loss of amenity. Conversely, defendants typically contend that the psychological injury is minor and should therefore fall within the tariff award under Regulation 2(1)(b) of the Whiplash Injury Regulations. This leads to the need to identify a definition of ‘minor psychological injury’ within the Whiplash Injury Regulations, only to find that no such definition exists. Since the introduction of the Whiplash Injury Regulations, there have been growing calls for clarity on what constitutes a ‘minor psychological injury’.
Recent government guidance has been published to provide greater clarity on the definition of ‘minor psychological injury’ (gov.uk). The below highlights pertinent points of the guidance and provides some observations.
“In general, a minor psychological injury, under the whiplash tariff is one which:
· is suffered on the same occasion as the physical whiplash injury,
· is secondary in significance to the physical whiplash injury, and
· falls short of being diagnosed as a specific phobia or diagnosable psychological disorder.”
The first bullet point is uncontroversial as it is a recounting of a part of Regulation 2(1)(b) of the Whiplash Injury Regulations.
The second bullet point requires some further thought. It would be tempting to assume that a ‘minor psychological injury’ is one that is “secondary in significance to the physical whiplash injury” given their presence acts to uplift the tariff amount by a relatively small sum. There was previously no indication that a ‘minor psychological injury’, considered more significant than the physical whiplash injury, would not fall under Regulation 2(1)(b) of the Whiplash Injury Regulations.
The third bullet point is helpful guidance which brings classification of psychological injuries under the Whiplash Injury Regulations in line with classification under the Judicial College Guidelines. Approaching psychological injury through the Judicial College Guidelines would place “cases falling short of a specific phobia or disorder such as travel anxiety” under ‘Chapter 14: Minor Injuries’ and outside of ‘Chapter 4: Psychiatric and Psychological Damage’. In other words, the guidance suggests that if the psychological injury would be considered under ‘Chapter 14: Minor Injuries’ of the Judicial College Guidelines, it would be regarded as a ‘minor psychological injury’ for the purposes of the Whiplash Injury Regulations.
“For both ‘whiplash only’ and ‘whiplash with minor psychological injury’ parts of the tariff, the value of the claim will be based on the duration of the whiplash injury irrespective of the length of the minor psychological injury component.”
This is helpful guidance in line with what is understood to be the case on a reading of Regulation 2(2) of the Whiplash Injury Regulations:
(2) In this regulation, “duration of injury” means—
(a)the duration, or likely duration, of the whiplash injury a person has suffered; or
(b)where a person suffers more than one whiplash injury on the same occasion, the whiplash injury of the longest duration, or likely longest duration, suffered on that occasion,
if the person were to take, or had taken, reasonable steps to mitigate the effect of that injury or those injuries.
The guidance, and indeed the Whiplash Injury Regulations themselves, suggest that a psychological injury of a duration which exceeds the physical whiplash injury, or even which exceeds two years, could still be regarded as a ‘minor psychological injury’.
Whilst the expectation remains that an initial medical report is sufficient in a claim involving a whiplash injury with minor psychological injury, it appears that a diagnosis of a specific phobia or disorder from a specialist is required to pursue a non-tariff award for psychological injury suffered on the same occasion.
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