By Mark Henley
On 17 September 2017 the new, 14th, Edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases was published: replacing the previous 13th Edition, published in September 2015.
By way of commentary, the following three changes from the previous Edition are worth highlighting (from amongst eight specific comments made in the Introduction).
First, damages across all recommendations have been increased, in line with the Retail Price Index. Two years, all be they of relatively low inflation, have, of course, now passed since the last Edition: rather than the one year between Editions which was previously more common, in times of higher inflation. The change in the RPI since the last edition, between June 2015 and the end of May 2017, is 4.8%: although the increases in the various recommendations are rounded up or down to the nearest £10, and so do not match this percentage exactly. For example, minor soft tissue injuries to the neck where a full recovery is made within 3 months change from “a few hundred pounds to £1,860” (before 10% uplift) to “up to £1,950”, and where a full recovery takes place between 3 months and a year change from £1,860 to £3,300 (before 10% uplift) to £1,950 to £3,470. This increase will, of course, add to the costs risks to Defendants posed by Claimants’ Part 36 offers calculated on the basis of the last Edition: particularly where damages must clearly fall around the margins of a particular bracket, making the change more obvious.
Second, the new Guidelines abandon the previous distinction made for facial scarring between males and females. The old Guidelines recommended higher awards for female facial scarring: at levels between around 50% and around 70% higher than for males, depending on the bracket. The new Guidelines make no distinction between males and females, and make every bracket far broader: with the bottom of each bracket being the old figure for males, and the top of each bracket being the old figure to females (adjusted for inflation). For example, significant facial scarring changes from £13,650 to £22,875 for females and £6,925 to £13,650 for males (before 10% uplift) to £7,270 to £23,980 for both. The Introduction to the new Guidelines makes clear that the level of award within these wider brackets will depend on the subjective views of the victim, whether male or female, about the scar, and on the extent of any psychological effect. By implication, these may, of course, tend to be on average more severe for females than for males: but the new Guidelines no longer presume this to be true in every case.
Third, the Introduction to the new Guidelines comments that the duration of symptoms, alone, should not be overemphasised in determining damages for relatively minor injuries. The Introduction states that an emphasis on duration of symptoms, however minor, alone, “takes insufficient account of the other factors by which quantum of awards for minor injuries falls to be assessed, and may obscure the fact in many cases that recovery may not occur at an even pace over time, but may frequently be much more marked in the very early days of recuperation. Intelligent application of the Guidelines, rather than too casual a focus on the length of time for which it is said the injury was suffered – perhaps in the light of a report saying that some minor symptoms are ongoing – is called for”. (The wording here clearly implies that this is true of all injuries of relatively minor severity: and that the comment is not intended to apply only to the specific recommendations for the sole category of “Minor Injuries”).
Two other comments appear worth making.
First, at a “micro” level, the removal from the new Guidelines, for injuries to each of the neck, shoulder and lower back, where a full recovery is made within 3 months, of the specific words “a few hundred pounds to £1,860” (before 10% uplift), which are replaced for all 3 such recommendations by the new wording “up to £1,950”, should make it easier for Defendants to justify damages below a few hundred pounds for such injuries of particularly short duration.
Second, at a “macro” level, it is interesting to note that in the last decade awards of general damage have increased relative to average earnings. In the three decades to 2008, when inflation was usually well below average wage increases, the increase of the Guidelines in line with the Retail Price Index resulted in the relative value of general damages awards falling behind in comparison with average earnings (mitigated to some extent, and only for more serious injuries, by the effects of the Heil v Rankin “uplift” in 2000): but since then, when the Retail Price Index has exceeded average earnings increases in most years, the reverse has been true, making the outcome of claims for general damages relatively more financially important for most working people.