Disease Claims - New Guidelines for the Assessment for General Damages in Northern Ireland

By Thomas Jordan & Sean McGahan

Published 11 April 2024

Overview

The long awaited latest version of the new Guidelines for the Assessment of Damages in Northern Ireland was officially published by the Judicial Studies Board for Northern Ireland on the 8^th April 2024. In England & Wales and Scotland the JC Guidelines have been updated to the 17^th edition with the 16^th edition dating back to November 2021.

The previous Northern Ireland guidance was published in 2019 and has not been reflective of awards being made in this jurisdiction for some time. Therefore, the publication of the new guidance may offer more certainty around potential awards, which have been steadily increasing in the absence of revised Guidelines. A few key differences between the old and new guidance are:-

Categories of deafness and tinnitus have been separated out to allow for individual consideration.
Asbestos related guide damages have increased by roughly 20%.
The bracket for occupational asthma has doubled from £70,000 to £140,000.

Read on for more analysis on damages for deafness/tinnitus and chest damages

Total Deafness

This area of the NI Guidelines has undergone quite extensive change.

For total deafness there is no change in categorisation but damages are increased.

Northern Ireland

Description	2019 range	2024 range	% increase
(a) Total Deafness and Loss of Speech or Gross Impairment of Speech	£290,000 - £500,000	£350,000 – £625,000	21% - 25%
(b) Total Deafness	£200,000 - £300,000	£250,000 - £350,000	25% - 17%
(c) Total Loss of Hearing in One Ear	£40,000 - £75,000	£50,000 - £100,000	25% - 33%

This broadly matches the JG Guidelines in England & Wales and Scotland in terms of the classification of loss at JCG 5(B)(a) to (c) with the ranges being:

England & Wales and Scotland

Description	2024 range
(a) Total Deafness and Loss of Speech	£133,810 - £171,680
(b) Total Deafness	£110,750 - £133,810
(c) Total Loss of Hearing in One Ear	£38,210 - £55,570

Hearing Loss and Tinnitus

The 2019 Northern Ireland Guidelines had previously provided ranges for partial hearing loss/tinnitus under three separate brackets:

mild ranging up to £20,000.
moderate ranging between £20,000 to £42,000.
severe ranging from £40,000 to £80,000.

This section has now been split in the 2024 Guidelines, including separate ranges for hearing loss and tinnitus.

Northern Ireland

2024 Ranges	Hearing loss only	Tinnitus Only
Mild	Up to £20,000	Up to £20,000
Moderate	£20,000 - £60,000	£20,000 - £40,000
Severe	£60,000 - £200,000	£40,000 - £90,000

Guidance is provided that where hearing loss and tinnitus arise from the same cause, allowance should be made to avoid over-compensation. Adjustment should also be made in cases of partial hearing loss affecting one ear only.

A further consideration has been introduced when having regard to assessing the award for hearing loss with the addition of the words "whether the injury or disability affects balance".

In England & Wales and Scotland the JC Guidelines at Chapter 5(B)(d) retain the a similar classification of severity of loss and the interplay of NIHL and tinnitus

England and Wales and Scotland

Loss	2021 range	2024 range	Change
Severe tinnitus and NIHL	£29,710 - £45,540	£36,260 - £55,570	22%
Moderate tinnitus and NIHL or moderate to severe tinnitus or NIHL alone.	£14,900 - £29,710	£18,180 - £32,260	8.5%
Mild tinnitus with some NIHL	£12,590 - £14,900	£15,370 - £18,180	22%
Mild tinnitus alone or mild NIHL alone	Around £11,720	Around £14,300	22%
Slight NIHL without tinnitus or slight tinnitus without NIHL	Up to £7,010	Up to £8,560	22%

The JC Guidelines make specific reference to NIHL and related tinnitus and therefore accounts for occupational and non-occupational losses referred to in the NI Guidance. On this basis it appears that all parts of the UK are broadly aligned on the valuation of NIHL claims. Needless to say that the Guidelines are on a 100% basis and do not account for the usual risks which apply in respect of breach of duty, causation and limitation.

Chest Injuries/Lung Disease

In Northern Ireland there has been no change to the description of categories in sections A for chest injuries and B for lung disease however there has been increases in the ranges which are evidenced as follows:

Northern Ireland

Description	2019 ranges	2024 ranges	% increase
A. Chest Injuries
(a) Most serious cases	£180,000 - £245,000	£225,000 - £300,000	25% - 22%
(b) Traumatic injuries to the chest involving the lungs and/or heart causing permanent damage and impairment of function, physical injury and reduction of life expectancy	£110,000 - £180,000	£140,000 - £225,000	27% - 25%
(c) Damage to the chest and lung(s) causing continuing disability	£25,000 - £110,000	£30,000 - £140,000	20% - 27%
(d) Relatively simple injury such as a simple penetrating wound causing some permanent damage to tissue but no significant long term effect on lung function	£12,000 - £17,000	£15,000 - £25,000	25% - 19%
(e) Injuries leading to collapsed lung from which full recovery is made	£8,500 - £17,000	£10,000 - £20,000	18% - 18%
(f) This area now includes toxic fume inhalation as well as smoke inhalation which is not serious enough to interfere permanently with lung function. (The remainder of the description remains the same in this bracket)	£6,000 - £24,000	£7,500 - £30,000	25% - 25%
(g) Fractures of ribs or soft tissue injuries causing serious pain and disability over a period. Number of ribs involved, degree and duration of pain and discomfort and prognosis to be taken into account. Long term or permanent pain will attract awards in excess of upper figure in range.	Up to £20,000	Up to £30,000	50%
B. Lung Disease
(a) Pleural plaques. On their own asymptomatic pleural plaques would justify an award at the lower range (i.e. now £4,500). It is unlikely any case of distress and anxiety caused by a diagnosis, absent some evidence of grave psychiatric sequelae, will recover outside the bracket of (2024) £7,500 - £22,000) however long the stress or anxiety lingers on.	£3,500 - £17,500	£4,500 - £22,000	29% - 26%
(b) Pleural thickening with functional impairment.	£25,000 – £50,000	£30,000 - £62,500	20% - 25%
(c) Minimal to mild asbestosis with at most slight impairment of quality of life.	£34,000 - £60,000	£42,500 - £75,000	25% - 25%
(d) Moderate to severe asbestosis with considerable impairment of function and quality of life.	£50,000 - £100,000	£62,500 - £125,000	25% - 25%
(e) Lung cancer or mesothelioma where death within a few years is inevitable.	£100,000 - £200,000	£125,000 - £250,000	25% - 25%
(f) Occupational asthma with impairment of function and quality of life.	£35,000 - £70,000	£45,000 - £140,000	29%-100%
(g) Aggravation of pre-existing, constitutional asthma.	£17,000 - £50,000	£20,000 - £60,000	18% - 20%
(h) Chronic bronchitis or COPD	£15,000 - £50,000	£20,000 - £65,000	33% - 30%
(i) Mild respiratory conditions, including mild bronchitis (usually resulting from unfit housing or similar exposure, particularly in cases of young children) treated by GP and resolving within a few months.	Up to £9,000	Up to £12,500	39%

In England & Wales and Scotland the JC Guidelines split out injuries to the internal organs including asbestos related injuries across several chapters. There is no specific chapter for pleural plaques within the JC Guidelines although Chapter 6(B)(g) could be considered relevant.

England and Wales and Scotland

Chapter 6(B)	Lung Disease
Chapter 6(C)	Asbestos-Related Disease
Chapter 6(D)	Asthma

Lung Disease	2021	2024	Change
(a) For a young person with serious disability where there is a probability of progressive worsening leading to premature death.	£100,670 - £135,920	£122,850 - £165,860	22%
(b) Lung cancer (typically in an older person) causing severe pain and impairment both of function and of quality of life. Practitioners may find some of the factors set out in (C)(a) useful in determining variations within the bracket.	£70,030 - £97,330	£85,460 - £118,790	22%
(c) Disease, such as emphysema, causing significant and worsening lung function and impairment of breathing, prolonged and frequent coughing, sleep disturbance, and restriction of physical activity and employment.	£54,830 - £70,030	£66,890 - £85,460	22%
(d) Breathing difficulties (short of disabling breathlessness) requiring fairly frequent use of an inhaler; where there is inability to tolerate a smoky environment and an uncertain prognosis but already significant effect on social and working life.	£31,310 - £54,380	£38,210 -£66,920	23%
(e) Bronchitis and wheezing not causing serious symptoms; little or no serious or permanent effect on working or social life; varying levels of anxiety about the future.	£20,800 - £31,310	£25,380 - £38,210	22%
(f) Some slight breathlessness with no effect on working life and the likelihood of substantial and permanent recovery within a few years of the exposure to the cause or the aggravation of an existing condition	£10,640 - £20,800	£12,990 - £25,380	22%
(g) Provisional awards for cases otherwise falling within (e) and (f) where the provisional award excludes any risk of malignancy, the extent of anxiety being a factor.	£5,320 - £18,090	£6,500 - £22,080	22%
(h) Temporary aggravation of bronchitis or other chest problems resolving within a few months.	£2,200 - £5,320	£2,690.00 - £6,500	22%

England and Wales and Scotland

Asbestos Related Disease	2021	2024	Change
(a) Mesothelioma	£63,650 - £114,460	£77,680 - £139,680	22%
(b) Lung cancer	£70,030 - £97,330	£85,460 - £118,790	22%
(c) Asbestosis and DPT (>10% disability)	£35,500 - £105,850	£43,320 -£129,170	22%
(d) Asbestosis and DPT (<10% disability)	£32,500 - £35,500	£39,660 - £43,320.	22%

Asbestosis in Northern Ireland and England & Wales and Scotland is valued broadly the same notwithstanding the general similarity in symptoms suffered.

Mesothelioma claims are valued significantly higher in NI than in England & Wales and Scotland

England and Wales and Scotland

Asthma	2021	2024	Change
(a) Severe and permanent disabling asthma, causing prolonged and regular coughing, disturbance of sleep, severe impairment of physical activity and enjoyment of life, and where employment prospects, if any, are grossly restricted.	£43,060 - £65,740	£52,550 - £80,240	22%
(b) Chronic asthma causing breathing difficulties, the need to use an inhaler from time to time, and restriction of employment prospects, with uncertain prognosis.	£26,290 - £43,010	£32,090 - £52,490	22%
(c) Bronchitis and wheezing, affecting working or social life, with the likelihood of substantial recovery within a few years of the exposure to the cause.	£19,200 - £26,290	£23,430 - £32,090	22%
(d) Relatively mild asthma-like symptoms often resulting, for instance, from exposure to harmful irritating vapour.	£10,640 - £19,200	£12,990 - £23,430	22%
(e) Mild asthma, bronchitis, colds, and chest problems (usually resulting from unfit housing or similar exposure, particularly in cases of young children) treated by a general practitioner and resolving within a few months.	Up to £5,150	Up to £6,280	22%

Generally speaking damages in NI for asthma related conditions are likely to be higher than in E&W or SCO.

Overall the rate of increase in E&W and SCO is around 22% for disease claims which is a somewhat more consistent and predictable rate of increase compared to NI where the increases range from 18% to 50%