PI Damages guideline rises: 16th Edition of the JC Guidelines published

 The Judicial College (formerly the Judicial Studies Board) has published the latest edition of its guideline damages for personal injury claims, more than 2 years since they were last updated in January 2020.

The stated objective of the Guidelines is to achieve consistency across all courts of awards for general damages although they do recognise that damages are for the courts to decide and that the Guidelines are merely that: guidance, not fixed points. In coming to the figures contained within the Guidelines, account is taken not just the rate of inflation since the last Guidelines but also quantum awards made in decisions of the higher courts.

Headlines

In the latest edition:

•  Figures have been updated to take account of both inflationary increases and higher court determinations;
•  New categories have been introduced for sexual abuse and work-related limb disorders;
•  A note is provided in respect of the application of tariff-based awards for general damages under the Civil Liability Act 2018; and
•  Pre-Simmons v Castle figures have been removed for virtually all injuries, providing a single, figure (or range) which incorporates the 10% uplift, although a formula to calculate pre-uplift figures has been provided,

Specifics

Rates of increase

In very general terms, previous guideline figures have risen by around the RPI increase since the last guidelines at 6.56% although there are increases below and above this level as can be seen from the comparative table below. It is to be noted that the previous Minor Type (ii) Back injury figure has been subdivided and a new Type (iv) created which equates to the old Type (iii). In these comparisons, figures are compared to the nearest previous figure if there is one.

Note: The percentages shown above have been rounded to two decimal places

New categories – Sexual abuse awards

In accordance with the recommendation of the Independent Inquiry into Child Sex Abuse arising out of its Accountability and Reparations Investigation, a free-standing category reflecting awards for sexual abuse has been created. This has been included in Chapter 4, which deals with awards for psychiatric and psychological damage.

New categories – Work-related limb disorders

A new chapter has been created for work-related limb disorders, which brings together material which previously resided in other sections (such as vibration white finger and tenosynovitis) but also includes a new section relating to 'cold injuries' such as “frostnip” and frostbite and non- freezing injuries leading to similar soft tissue, nerve, or vascular damage. These figures are to be found in Chapter 8.

Other changes

A 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

While highlighting the need for readers of the JC Guidelines to consider the applicability of the tariff-based general damages regime introduced by Part 1 of the Civil Liability Act 2018 and the Whiplash Injury Regulations 2021, the Note does little more than list the circumstances in which the scheme applies, how Tables A and B inter-relate and the potential for an uplift of up to 20% in “exceptional circumstances”. However, on the most difficult issue for practitioners, the Note on whiplash just highlights that the position is as yet untested, saying “It is unclear from the statutory provisions and the Regulations quite how the courts are expected to assess General Damages in those cases where a claimant suffers both a whiplash injury and a non-whiplash injury (including a 'non-minor' psychological injury). See section 3(8) of the Act. Again, further guidance will doubtless be provided by the courts in due course. The applicability of the tariff scheme to those cases in which the injury sustained amounts to an acceleration or exacerbation of an underlying condition for a period of up to two years is another area where further judicial input is likely to be required.”

Comment

Despite the majority of the changes reflecting inflationary pressures and other awards, both being issues available to parties to raise in argument in any given case, the changes in the guideline figures will inevitably have a degree of upward pressure on damages awards and consequently claims inflation.

The new tables for sexual abuse cases follow quite quickly on the observations of Mr Justice Jeremy Johnson in the recent case of TVZ and others v Manchester City Football Club Limited [2022] EWHC 7 (QB). It is always extremely difficult to put a price on the suffering of victims of abuse and we shall be giving very careful consideration to both the Guidelines and Johnson J’s detailed commentary.

As far as the work-related limb disorder section is concerned this is a welcome addition to the Guidelines, particularly the specific guidance on the assessment of cold injuries which is new. The figures for vibration white finger and/or Hand Arm Vibration Syndrome and other previously covered injuries have generally risen in line with other increases within the Guidelines.

Cold injuries are notoriously difficult to value and the new guidance, while helpful, is not particularly detailed. The lower bracket refers to less serious cases of long-term cold sensitisation of the hands or feet only, resulting in intermittent discomfort or pain in cold conditions, which are manageable with warm clothing or by limiting cold exposure, which will attract an award of “around £15,000”. There could be cases therefore that may warrant an award above that level but which do not fit into the higher bracket.

Where there are aggravating features, such as symptoms affecting both hands and feet or an inability to manage symptoms, a higher award is to be expected, but the only guidance indicates that the combination of chronic pain, sweating hands and feet, difficulty being outdoors, acute psychological symptoms and acceleration of future joint problems would warrant an award in the region of £32,500. There are likely to be a number of cases which fall between the stated figures of £15,000 and £32,500 and practitioners will need to continue carefully assessing the Guidelines against available case law when determining reserves and offers.

The “Note on Whiplash Injuries: Tariff-Based Awards”, while bringing this new regime to the attention of those using the Guidelines, provides no new information or guidance. As stated above, the major question of how courts should approach cases which involve both whiplash and non-whiplash injuries is not addressed and practitioners will have to wait for judicial guidance.

In overall terms compensators will, inevitably, be facing a degree of claims inflation as a result of the changes to the Guidelines, though it is within the range of what it would have been reasonable to predict.