Road traffic personal injury update

Whiplash Injury Regulations: minor psychological injury

The first is a helpful guidance note aimed to provide clarity around the definition of minor psychological injury.

To recap, the Whiplash Injury Regulations 2021 provide for a bespoke tariff which sets the total amount of damages for pain, suffering and loss of amenity that a court may award for road traffic accident related whiplash injuries of up to two-years duration and any ‘minor psychological injuries’ suffered from the same incident. 

While a ‘whiplash injury’ is defined in Section 1of the Civil Liability Act 2018, a ‘minor psychological injury’ is undefined, though the Explanatory Memorandum that accompanies the Regulations does provide an example of such a condition being ‘low level travel anxiety’.

We now have updated guidance on minor psychological injuries as published by the Ministry of Justice on 5 August 2025 and which gives some further insight into what is meant by the term ‘minor psychological injury’ under the Regulations

1. It is a condition suffered on the same occasion as the physical whiplash injury.
2.  It is secondary in significance to the physical whiplash injury.
3. It is a condition that falls short of being diagnosed as a specific phobia or diagnosable psychological disorder.
4.  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.

There is also clarification on the medical evidence required in that, ‘A second report would normally only need to be sourced if there is a more significant diagnosable psychiatric injury which goes beyond ‘minor psychological injury’ as described in Chapter 4 of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (JCG).’  So, it would seem 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, though, helpfully, the guidance reminds us that pursuant to Practice Direction 27A paragraph 7.3, expert fees in the Small Claims Track are limited to £750 for each expert.

Whilst it remains to be seen how practitioners might regard the concept of ‘secondary significance’ when it comes to determining whether the psychological injury caused fits more with assessment under the JCG Chapter 4 than the Whiplash Regulations, it is hoped that this further clarification around how ‘a minor psychological injury’ is to be assessed will save court and representative time in distinguishing those cases which truly require further investigation.

Compulsory mediation within the small claims track

The second item of interest is a change to Practice Direction 51R which governs small claims issued via the  Online Civil Money Claims (OCMC) service, i.e. fixed sum claims which do not involve a personal injury. This change, which came into force on 28 July 2025, applies to road traffic accidents with a value of less than £10,000 and requires such cases to be automatically referred to mediation. These amendments therefore bring non-injury road traffic accident claims in line with other small claims brought through the OCMC which are already subject to mediation. The experience elsewhere is thought to have had a positive impact in resolving cases quicker and reducing the number that go on to a trial within the county court system. The changes come with the added incentive that if a party fails to attend the mediation, they may be subject to a cost sanction for behaving unreasonably.

The changes are a pilot and given the sometimes contentious nature of small claims, the results will be keenly awaited.

Further reading from the author is available (see ‘Staying power - how to avoid claims incubation’ and ‘Staying power curtailed – the Court of Appeal calls for action!’).