Judicial College Guidelines for the Assessment of General Damages - New 11th Edition

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Date: 11/10/12

The 11th edition of the Guidelines for the Assessment of General Damages has recently been published with a name change to reflect that the Judicial Studies Board became the Judicial College in 2011.

The much anticipated question was whether the new guideline figures would include the 10% uplift due to come into force alongside the other April 2013 civil justice reforms. The answer is they do not. That it was right not to do so is confirmed by the revised judgment of the Court of Appeal in Simmons v Castle given on 10 October 2012.  

The key headlines are:

  • above inflation increases across the board averaging in the region of 9%.
  • new chapters on Injuries Resulting in Death, Chronic Pain, and Minor Injuries.
  • additional subdivisions of the broader bottom brackets of a number of injuries, most notably orthopaedic injuries.
  • more detailed guidance in some chapters to assist with grading offers within broader brackets.

In this update, we highlight the main changes to the Guidelines, and note the effect of Court of Appeal’s revised judgment in Simmons v Castle.

Simmons v Castle: 10% increase in general damages
- the crucial question whilst awaiting the 11th edition of the Guidelines (published prior to the ABI's intervention in Simmons v Castle) was whether they would contain the 10% uplift on general damages being brought in as part of the package of civil justice reforms. They do not and the Foreword simply states that any further Judicial College supplementary guidance on this will be available in April 2013.

The Court of Appeal has now handed down its revised judgment following the ABI's intervention. The original guidance was that the 10% uplift would apply to all cases where judgment is given after 1 April 2013. Instead, there will now be an exclusion for claimants who fall within the ambit of section 44(6) of LASPO 2012. In effect, this means that the 10% uplift will not apply to cases where a claimant has entered into a CFA or joined the case to a CCFA before 1 April 2013 but note that it will apply to cases where there is no such funding arrangement in place whenever those claims began. Click here for our update on the latest decision.

Inflation - the Guidelines contain increases which are slightly above inflation. The percentage increase in RPI over 2 years is approximately 8.2% but most of the Guideline increases are between 8.7% and 9.3%. This compares with relatively modest increases in the 2010 Guidelines of between 2.5% and 4%, but inflation was lower at that time. There are some anomalies in the percentage increases but these mostly reflect a realignment of certain brackets and additional subdivisions which we discuss below.

Facial Injuries - it has been concluded that it cannot be correct that a man should receive less than a woman for an identical injury with identical impact. That said, it may be the case that the impact of scarring is greater on women than on men - the Judicial College expresses no view. It has maintained the gender based sections with a "health warning" and awaits future judicial decisions on the issue. The College's view is that the upper end of each female bracket should be regarded as applicable to both genders but with recognition that the impact of such injuries may vary so widely that each bracket should be drawn more widely. In her Foreword to the Guidelines, Dame Janet Smith suggests from a personal viewpoint and without any legal authority in support that when judges are considering an award in a case involving any element of disfigurement, they should consciously put out of their minds the claimant's gender as a factor in the assessment. They should look at the reported cases and brackets for both men and women and evaluate the damages against the framework of that wider range of awards. She argues that when giving judgment they should say that although the claimant is a man, or woman, that in itself has played no part in the assessment.

Minor injuries - in previous editions of the Guidelines minor injuries within the various chapters have fallen within a broad bracket to cover for example, symptoms lasting for a few weeks to two years. Following concerns over the lack of guidance on small injury awards, a new chapter on minor injuries has been introduced and the broad lower brackets of a number of common types of injury have been broken down into further subdivisions.

The most obvious subdivisions are within the frequently used brackets for neck and back injuries. The minor injuries sections have been split into three further brackets. The section now also lays out seven factors to be taken into consideration as well as duration, when determining the level of award, including the impact of the injuries on a person's ability to work and the extent of any treatment required.

These additional factors should be of assistance where one party or another wants a case specific offer. For example, where a claimant's offer for a 12 month neck injury is likely to be at the top of the bracket, an application of the factors may give more weight to a lower award. The factors will also be useful in the RTA protocol where a defendant needs to make comments on a stage 2 pack. The factors reflect the type of comment we currently advise insurers to make within that process.

The new lowest brackets for soft tissue neck and back injuries provide a better starting point for symptoms lasting only a few days. It would have been more helpful for the lowest bracket to have an upper valuation of £1,000 for whatever injury merited that award in order to align it with the current personal injury limit for the small claims track, thereby giving guidance on the ongoing contentious issue of whether damages are large enough in any specific case to entitle the claimant to recover costs.

Usefully though, this cut off point is contained within the new chapter 13 on Minor Injuries. Injuries lasting up to seven days are valued up to £500 and injuries lasting up to 28 days are valued up to £1,000. The new chapter covers injuries of short duration and, it is worth noting, those not covered in other chapters, so that for example, minor neck injuries will still fall into bracket 7(A)(c).

Child abuse cases – the editorial team considered including a separate chapter on child abuse cases but abandoned the idea as the features of these cases vary so widely. Instead a number of common factors have been identified which take the awards of damages in such cases well beyond those that relate to psychiatric damage alone. These derive from C v Flintshire County Council [2001], KR v Bryn Alyn Community (Holdings) Limited [2003] and many cases since, including BJM v Eyre [2010].

These factors have led to more comprehensive guidance in bracket 4(A)(vii) including a reminder that in addition to the psychiatric element, there are the aspects of the physical abuse which have to be factored in and which have an impact on the approach to valuation. The judgments referred to have highlighted that because there is a concentration on the psychiatric element, sometimes the actual physical assaults are ignored.

Chronic pain – this has been removed from the chapter on Psychiatric and Psychological Damage and has been given its own chapter (8), no doubt reflecting the increasing number of claims involving this type of condition. Apart from a separate section on Complex Regional Pain Syndrome, the new chapter removes previous subdivisions for different clinical conditions such as Fibromyalgia or Chronic Fatigue Syndrome and brings those categories of claims together.

General damages for PSLA before death – there is a short new chapter 1 which allows for an element of PSLA for the period between injury and death. There are four brackets ranging from "Full Awareness" with a valuation between £15,000 and £17,000 and "Immediate Unconsciousness / Death Within One Week" with a valuation of £1,000 to £2,000. This new chapter will be of assistance as there has to date been no guidance in this area, with parties having to search for authorities in each case. However, the figures are not insubstantial especially where previously defendants would have argued that there can really be no pain with immediate unconsciousness, so reaching a conclusion that no PSLA award should be made. It should be noted though, that this chapter does not apply for example, to cases relating to asbestos exposure or other cancer claims where reference will continue to be made to the awards for those underlying conditions.

Disease – interestingly, the editorial team has acted on the decision of Swift J in Ball v Secretary of State for Energy and Climate change [2012] relating to mesothelioma where she said she found it difficult to understand the basis of the lower level figure of £35,000 in the 10th edition of the Guidelines. In the 11th edition, this figure has increased to £50,000. This does appear to run contrary to an established line of authority supporting reduced sums for very short periods of pain and suffering and the amendment will make it more difficult to argue for those lower awards. In practice, this type of situation is fairly rare but it may be that when they do arise, insurers will still want to treat Swift J's judgment with the same weight as they were doing previously.

Additional guidance of note appears in bracket 7(J) covering Vibration White Finger and Hand Arm Vibration Syndrome. The Stockholm Workshop Scale which concerns the grading of the extent of the condition on both the sensorineural and vascular scales has historically not been applied subjectively to individual claimants. The new guidance considers the personal impact on a claimant including age at onset and effect of symptoms on work, domestic and social life, so that for example, a lower award might be made despite a significant Stockholm Workshop Scale grading where employment is unaffected, or a higher award where there is a lesser grading but a greater impact on life.

Multiple injuries – the editorial team has noted the difficulty in assessing general damages in multiple injuries cases and in particular, in determining the extent to which there is an overlap between injuries and how this should be reflected in the overall award. They therefore highlight the guidance as to the approach to be taken in Sadler v Filipiak [2011] CA:

"It is ... always necessary to stand back from the compilation of individual figures,...to consider whether the award for pain suffering and loss of amenity should be greater than the sum of the parts in order properly to reflect the combined effect of all the injuries upon the injured person's recovering quality of life or, on the contrary, should be smaller than the sum of the parts in order to remove an element of double counting. In some cases, no doubt a minority, no adjustment will be necessary because the total will properly reflect the overall pain, suffering and loss of amenity endured. In others, and probably the majority, an adjustment and occasionally a significant adjustment may be necessary."

Note also that one of the factors influencing the award of soft tissue neck and back injuries is referred pain to other areas, reflecting the suggestion those should still be seen as one site injuries with a complicating factor, rather than multiple injuries.

Comment
We now have confirmation that these significant increases in PSLA figures are unconnected with the Simmons v Castle 10% increase. It is in fact coincidence that the 11th edition of the Guidelines came out when they did, on the eve of Simmons returning to the Court of Appeal, as they are reviewed every two years. The timing though is unfortunate at least for insurers. They will be concerned by an average increase through the Guidelines of 9% compounded by a further 10% increase in new claims starting after 1 April 2013, that is a total increase of 19% in just 6 months.

In reality though, if you take the view that the 10th edition figures were subject to increase for inflation from the time those Guidelines were issued 2 years ago, then all the 11th edition is doing in its average 9% increase figures is to add that inflation back in. However, the likelihood is that many claimants' advisers looked only at the 10th edition figures, and did not add for inflation that had impacted since their publication.

There is no reference in the 11th edition to any move towards software calibrated awards as Lord Justice Jackson had considered. Movement on that will have to take place outside the process of future reviews of these Guidelines, and the increased figures represented here are likely to have to be taken account of in future development of that software.

In the last edition of the Guidelines, there was a call for data in relation to minor injuries, and we now have a separate section on those cases. While greater certainty is available as a result of having figures for minor injury claims, there will be considerable comfort to claimants' advisers from those figures, as they will now be able to point to the recommendation that only 28 days of symptoms is sufficient in a case falling into the minor injury section of the Guidelines to merit an award of £1,000 for PSLA, so to give rise to an expectation that the claimant will recover costs.

The Government is of course still to consider whether the small claims track limit should be raised from £1,000. If it considers that a 28 day minor injury claim is not one where there should be an expectation to recover costs, then that in turn would be a reason to increase the limit from its current level.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

 
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