The introduction of the ‘whiplash tariff’ by way of the Civil Liability Act 2018 and the Whiplash Injury Regulation 2021 was intended to create certainty and reduce the damages for whiplash injuries caused by road traffic accidents.
Any accident after the 31st May 2021 will be subject to the whiplash tariff. The exception is where the Claimant is a pedestrian or the driver/pillion of motorcycle or bicycle. There was some confusion by a few members of the judiciary about the application of the whiplash tariff when the Claimant was child. As per my previous post, children are exempt from the small claims track but their damages are still assess with the whiplash tariff if they are a passenger in a car.
The real areas of contention should be (and understandably be) when the Claimant sustains a non-tariff injury (and what is a non-tariff injury). What I was not expecting was confusion about how the actual whiplash tariff works.
The relevant legislation
Broadly speaking, the Civil Liability Act 2018 states that where an injury is a whiplash injury the award by the Court shall be limited to what is set out in the Whiplash Injury Regulations 2021.
Regulation 2 sets out a very straight forward table:-
| Duration of injury | Amount –Regulation 2(1)(a) | Amount –Regulation 2(1)(b) |
|---|---|---|
| Not more than 3 months | £240 | £260 |
| More than 3 months, but not more than 6 months | £495 | £520 |
| More than 6 months, but not more than 9 months | £840 | £895 |
| More than 9 months, but not more than 12 months | £1,320 | £1,390 |
| More than 12 months, but not more than 15 months | £2,040 | £2,125 |
| More than 15 months, but not more than 18 months | £3,005 | £3,100 |
| More than 18 months, but not more than 24 months | £4,215 | £4,345. |
One would think that this is straight forward. The awards in 2(1)(a) are when it is just whiplash and the amounts in 2(1)(b) are for when there is some minor psychological injury suffered at the same time as the physical whiplash injuries.
So if my client had two months neck pain and seven months neck pain, the correct award would be £840 because he has more than six months whiplash but less than nine months.
One would then assume if there was travel anxiety included, then the appropriate award would be £895. Some do not believe this is the correct approach.
Example
I was privy to an advice on a child’s claim that led to an offer being made and being accepted by the Defendant on the MOJ Portal. I was appearing at the infant approval hearing.
The longest injury of whiplash was about five months and the Claimant had ten months of travel anxiety. I was somewhat surprised that the advice given to the Claimant was that the claim was worth £1,390 because the travel anxiety persisting the longest was ten months so fit within the longer than nine but no more than twelve months.
My interpretation was that the claims as worth £520. Upon consulting with some fellow advocates, I was reassured that I had not misinterpreted the legislation.
Why is £520 correct?
First we consider what regulation 2(1) actually says:-
Subject to regulation 3—
(a)the total amount of damages for pain, suffering and loss of amenity payable in relation to one or more whiplash injuries, taken together (“the tariff amount” for the purposes of section 5(7)(a) of the Act), is the figure specified in the second column of the following table; and
(b)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, taken together (“the tariff amount” for the purposes of section 5(7)(b) of the Act), is the figure specified in the third column of the following table—
Further regulation 2(2) says:-
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.
If the duration of injury is solely the whiplash injury, not the psychological injury, then the aforementioned case could not have been worth £1,390. It must have bene worth £520.
What did I intend to do if the Judge questioned this?
It was open to the Defendant to reject the offer and propose £520 as the correct figure. The fact that an offer is not finalised until the Court approved it did not mean that the Judge should reject the approval. In fact, it would have been entirely inappropriate if the Judge tried to circumvent the settlement and require the Claimant to renegotiate to a lower figure.
The approval of the settlement is the purpose of the hearing and I would have submitted that the Judge merely needed to consider whether the settlement was in the Claimant’s best interests and if the Court didn’t approve the same then the matter would have proceeded to a final hearing (stage 3) where the Court would have most likely have identified the correct award as being £520.
Conclusion
I am unsure how the author came to make the mistake. Was it a precedent based on draft proposals of the legislation? Wouldn’t be the first time that mistakes have been made.
The worst outcome would have been if the Defendant rejected the £1,390 and offered £520. The matter then proceeded to a Stage 3 hearing where, by failing to beat the Defendant’s Part B offer, the Claimant was responsible for the Defendant’s Stage 3A and 3B costs. As the Claimant would be entitled to the Stage 1, 2, 3A, 3B and 3C costs in any event, there is some balancing of the loss to the Claimant.
I just couldn’t believe that there is an interpretation issue with the tariff awards in such a manner.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.