CPR 45.62 (previously CPR 45.29i in the pre-1st October 2023 rules) states that where a claim arises from a road traffic accident and is either (a) a soft-tissue injury claim or (b) a claim that consists of, or includes, whiplash, the rule fixes and limits the recoverable disbursements for medical evidence and records. A similar rule exists for RTA cases in the MOJ and OIC Portal.
The question that usually arises is whether a pedestrian or a motorcyclist is subject to the soft tissue injury fixed disbursment rule. CPR 45.62(5) specifically says “In this rule, ‘accredited medical expert’, ‘associate’, ‘associated with’, ‘fixed cost medical report’ ‘MedCo’, ‘soft tissue injury claim’ and ‘whiplash injury’ have the same meaning as in paragraph 1.1(A1), (1A), (10A), (12A), and (16A) and (20), respectively, of the RTA Protocol.”
The definitions, found in Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents, include the following:-
(16A) ‘soft tissue injury claim’ means a claim brought by an occupant of a motor vehicle where the significant physical injury caused is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury, but excludes any claim which consists of or includes a whiplash injury;
(20) ‘whiplash injury’ or ‘whiplash injuries’ means an injury or injuries of soft tissue in the neck, back or shoulder suffered because of driver negligence as defined in section 1 of the Civil Liability Act 2018 and as further applied by section 3 of that Act to claims where the duration of the whiplash injury or any of the whiplash injuries—
(a) does not exceed, or is not likely to exceed, two years; or
(b) would not have exceeded, or would not be likely to exceed, two years but for the claimant’s failure to take reasonable steps to mitigate its effect.
The Civil Liability Act 2018 classifies a whiplash injury as someone who sustains a soft tissue injury whilst using or being carried in a motorvehicle other than a motorcycle.
It is quite clear that the overarching point is that a soft tissue injury for the purposes of CPR 45.62 is an occupant of a motorvehicle. However, when does on stop or start being an occupant of a motorvehicle? At what size does a coaster start becoming a place mat?
This was a question that arose (outside of Court and not pursued regarding a Claimant I was acting for at an RTA fast track trial.
In or out of the motor vehicle?
In my case, the Claimant had alleged that she opened the door of the Defendant’s vehicle and was leaning in to hug her granddaughter, who was in the front passenger seat. The Defendant was alleged to have driven off with the Claimant still half way in the car, causing her to sustain injury.
The Judge accepted the Claimant’s version of events, acknowledging that the relationship between the Claimant and Defendant was fraught and most likely the situation was so intense that the Defendant simply panicked and drove off without realising the Claimant was still halfway in the car.
We were invited to step outside and attempt to resolve costs. In our discussions, my opponent wondered whether it could be argued that the fixed medical report disbursement, which applies to whiplash claims, would apply to this situation. My opponent concluded it was not a sustainable argument.
It did make me contemplate if it was sustainable.
The definition of ‘occupant’
There is no real definition of occupant anywhere, but there are many indications of what an occupant of a motor vehicle.
In s1(4) of the 2018 Act, the use of ‘using’ and ‘being carried in’ a vehicle suggests one has to be in a vehicle to be an occupant.
However, Jake Cullen of Express Solicitors has pointed out (after the publication of this article) that s1(6) says “For the purposes of this section references to a person being carried in or on a vehicle include references to a person entering or getting on to, or alighting from, the vehicle.” I am concerned about the extent to which a person needs to be involved in the alighting process for s1(6) to take place.
This is in contrast to the definition of what a road traffic accident is as per Dunthorne v Bentley [1996] R.T.R. 428, where it was determined that a person crossing a road to her car was an act so closely and causally connected to the use of her car that it met the criteria of s145(3) Road Traffic Act 1988 (an insurance policy needs to cover the liability which may be incurred by a person in respect of the death of or bodily injury to any person or damage to property caused by, or arising out of, the use of the vehicle on a road).
That is, of course, a completely different proposition because a broader scope of coverage is required for a motor insurance policy, rather than only covering someone in a motor vehicle. The question of who is an occupant of a motor vehicle needs to be more confined compared with the question of what is considered to be the use of a motor vehicle.
Throughout the Road Traffic Act 1988, the use of ‘occupant of a seat’, especially for matters such as seatbelt use.
The real question, to determine what is meant by occupant of a motor vehicle, would be to consider the intended purpose. That is to reduce the cost of dealing with whiplash claims. That returns to the RTA Protocol and, subsequently, the 2018 Act. In that situation, it has to be someone using or being carried in a motor vehicle. Whilst it seems a bit circular, it has to be the case that in order for someone to have whiplash, they must be sitting in the vehicle. However, if one looks at the explanatory notes, it says “Subsection (4) provides that these provisions will apply in those cases where, a person, because of their negligence while using a motor vehicle on a road or other public place in England and Wales, causes another person, whether a driver, or a passenger riding in or on a motor vehicle, to suffer a whiplash injury.”
The question, the real question is how far along the alighting process does someone need to be to be considered being ‘carried in’.
Could leaning into a car be deemed to be an occupant of a vehicle?
I believe my opponent made the right choice by not arguing whether the fixed disbursement applied in this case. While it could have been interesting to argue that point in Court, overall, considering all factors, it seems reasonable that leaning against a car during the accident does not qualify as occupying a motor vehicle, even without a formal definition or authority.
It is interesting that no clear definition appears within Part 45, RTA protocol or the 2018 Act. Whilst probably one of the less contentious issues that remain undefined, it would resolve a lot of debates if the definition lists were more extensive.
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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.