Guidelines for the Assessment of General Damages in Personal Injury Cases (Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases)

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Practitioners will be comforted to learn, not that much. There are, however, a handful of changes lawyers need to be aware of when calculating General Damages:

Aggravated damages are compensatory in nature, not punitive, as set out in Rookes v Barnard [1964] AC 1129. The Law Commission recommended statutory clarification of this point in 1997 noting that the label of “ aggravated damages” was somewhat misleading, suggesting instead “ damages for mental distress” (report, para 1.9). That recommendation was rejected. It should be noted that although there are some cosmetic changes to the chapters in the guidelines, the relevant figures generally remain consistent with the overall RPI adjustment. These are the main such changes. Personal injury enquiries are handled by our partners at National Accident Helpline (a trading name of National Accident Law) who are regulated and authorised by the Solicitor Regulation Authority (SRA). ii) The pre- Simmons v Castle column (for cases funded by pre-LASPO CFAs) has now been omitted (save that the guideline figures for mesothelioma claims are still on a pre-LASPO basis because the Act was not commenced for those cases)

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Practitioners across Scotland regularly use the JC Guidelines to inform and advise on the likely awards for damages in Scotland. A key element that has been missing is a specific category for abuse cases. A new category is to be welcomed and was a recommendation of the Independent Inquiry into Child Sexual Abuse. On 11 April 2022, the Judicial College Guidelines (JCG) 16 th Edition was published, superseding the 15 th Edition, which was published on 26 th November 2019. Although these figures show a quite consistent increase of around 7%, this should not be taken as any indication that all increases are at this level. In some ways this might be considered to be a variation of section (d). If a claimant is able to prove NIHL of, say 7 dB which could be considered under section (d), then there is likely to have been an acceleration in the need for hearing aids, or there will be. Exemplary damages were awarded in sexual abuse claims in Kuddus v CC of LP [2002] 2 AC 122 and AT, NT, ML, AK v Dulghieru [2009] EWHC 225 (QB).

Of course, a change to the Judicial College Guidelines does not change the law in relation to de minimis. It may, though, support such an argument. It is difficult to put a financial value on an injury. Is a broken arm worth more or less than an amputated toe? Which deserves higher compensation, loss of hearing or loss of taste and smell? iii) There is a new section on damages for sexual and physical abuse, as was recommended by the Independent Inquiry into Child Sexual Abuse, andA number of other “tweaks” to the Guideline figures include the reshaping of some categories, including those relating to damage to reproductive organs to reflect the JC’s recognition “ that injuries leading to sexual dysfunction, loss of sexual function, and associated psychological sequelae may affect both men and women” and that previous figures for women had, as observed by the Professional Negligence Bar Association, focussed almost exclusively upon loss of fertility and reproductive capacity. Note on Whiplash Injuries: Tariff-Based Awards All practitioners should familiarise themselves with the new guidelines in respect of their individual practice areas. We understand that the new guidelines will be available through the usual legal online resources shortly. One of the regular questions that crops up when a Claimant has suffered an injury is ‘How much will I get?’ although the solicitor wants to obtain the best amount of compensation, the answer to the question is not so simple. Finally, a large number of cases have a global award made for PSLA which is said to include a sum for aggravated damages or injury to feelings. In those cases, it is impossible to understand what proportion of the award is for the fact of the abuse and what proportion is for the injury caused. For obvious reasons this is unhelpful for the practitioner who needs to advise her client on how much they can expect to recover for each constituent head of non-pecuniary loss. Unless both the nature and severity of the abuse and the nature and severity of the injury caused to her client are similar to that in the reported case, the award in the reported case is unlikely to be of any assistance. It is important to note that there is not necessarily a correlation between the extent of the abuse suffered and the extent of the psychiatric injury caused by sexual abuse; some claimants suffer only mild, short-term psychiatric injuries from multiple rapes committed over many years, while others suffer lifelong debilitating psychiatric injuries from one-off “less serious” incidents of abuse. This is why the fact of the abuse requires distinct consideration and quantification.