So far my RTA personal injury submissions have been made a Stage 3 Oral hearings, OIC determination hearings, Fast Track trials and disposal hearings.
Yesterday I attended a Stage 3 hearing which was unique. It was the first time I was making submissions for a mixture of whiplash tariff and non-tariff injuries that occurred as a result of the an accident.
This is because the application of the Civil Liability Act 2018 came into play on 31st May 2021, meaning accidents on or after this date (where the person was an occupant of a motor vehicle) where someone sustains soft tissue whiplash injuries to the neck, back and shoulder, will not have their ‘whiplash’ injuries assessed on the common law basis.
Although injuries that can be distinguished from the whiplash injuries will be assessed on the common law basis, if the total PSLA does not exceed £5,000 or the total claim exceed £10,000, the claim will fall within the RTA Small Claims protocol where if proceeding are issued, it will be disposed of at a OIC determination hearing under PD27B in the small claims track.
This Claimant’s damages were likely to exceed £5,000 (the Claimant was seeking £9,000 and the Defendant suggested just over £5,000) and therefore the claim proceeding via the usual MOJ portal.
This post is for those who are interested to know how the matter proceeded.
Determination of whiplash tariff
I submitted to the Judge that this was relatively straight forward. As per the Whiplash Injury Regulations 2021, the duration of whiplash is measured by the longest whiplash injury, less any failure to mitigate.
I made it clear that the judge needed to not even concern herself with the severity or the impact on the Claimant at this stage to make the determination.
The medical expert has stated that recovery would occur within 4 months of commencement of physiotherapy. I had no evidence that but it was easy to submit that even if the Claimant undertook the physiotherapy immediately, it would place her recover after 15 months but no more than 18 months
This, I submitted, meant that without any evidence that supported she failed to mitigate any further, the correct award was £3,005.
Assessment of non-tariff injuries
I then moved onto the non-tariff injuries which would need to be assessed as per usually in reference to the JC Guidelines.
The whiplash tariff can cover minor psychological injuries but it does not explain what is meant by “minor”. Nevertheless my client been diagnosed with PTSD, along with two other disorders. She was had CBT preciously post accident, presumably on the NHS, and the expert recommended further therapy with the aim to a full resolution of symptoms.
The recommendation was for CBT. Again, I had no evidence to support if such therapy was undertaken but I made submissions based on the presumption that he had undertaken said therapy.
My client also suffered some short lived injuries that were exempt from the whiplash tariff and these needed to be accounted for as a non-tariff injuries separate from the whiplash.
Once the Judge had the figures together for the non-tariff injuries (and for ease, I invited the Judge to uplift the psychological injuries to account for the minor injuries) I submitted to the Judge that she needed to account for inflation (see post). I did not push this too much because I wanted the focus to be more on the actual damages assessment and the judicial inclination is that they will ‘account’ for inflation in their decision or ought right refuse to increase artificially.
Hassam v Rabot reduction
The Defendant may have received permission to appeal from the Supreme Court but the Hassam v Rabot was still good law. I invited the Judge to add the tariff and non-tariff injuries together as per paragraph 38.
The question for the Judge was, did she need to reduce for overlap? I submitted that there was an ever so tiny overlap between the psychological injuries and the whiplash injuries but more so with the short lived non-tariff injuries. I made the relevant submissions that meant that the Judge needed only to reduce the total figure slightly to account for overlap.
I submitted damages were about £10,000 and reduced to £9,500 for overlap.
Defendant’s submissions
My opponent was very much, in principle, in agreement with the process of addressing damages, did not object to the tariff amount but submitted our position was a little on the high side for the non-tariff injury. He acknowledged that his client’s proposal (around £5,750) was too low and recommended £7,000.
Judgment
The Judge agreed with all principles (he did not expressly address inflation) but found that my proposal was a bit on the high side in respect of the non-tariff injuries and said the gross figure was £8,000 but refused to reduce too much given little overlap between the tariff and non-tariff injuries and awarded £7,750.
No need for overlap increase as per para 38 of Hassam because the total amount exceeded the amount for the non-tariff injury.
Conclusion
Interestingly, the Judge summarised the evidence to us at the start of the hearing (the case had been passed between three Judges since my arrival at Court) and was not even aware that the claim was a mix of tariff and non-tariff injuries until I brought it to his attention.
The Defendants have permission to appeal from the Supreme Court on Hassam I am unsure when it will be heard but currently, in cases such as this, the para 38 caveat was not necessary but the Defendant’s preferred approach would have led to damages that were much lower, even potentially within the small claims track.
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.