The 14th Edition of the Judicial College Guidelines for general damages for personal injuries was published on Friday 15 September. The overall increase in guidelines is of around 4.8%, which reflects the increase in RPI since the last edition (published in September 2015).
The foreword to the latest edition suggests that more significant change could be in the mix for the next edition, such as: a new legislative basis for whiplash awards, the further decline of pre-Jackson general damages awards and the potential for the next round of increases to reflect an index other than RPI.
In the meantime, the key changes to note in the 14th edition are the removal of gender differentiation for awards for scarring injuries and overdue confirmation that mesothelioma awards will not usually attract the post-Jackson 10% increase (i.e. the Simmons v Castle increase). In addition to the overall 4.8% increase for RPI, the following changes have also been made.
- Scarring. Gender differentiation between awards for scarring has gone, as it was “indefensible“ and “an outdated stereotype”. The bracket of awards has widened as a result and the focus will be on the individual’s subjective views about the scar and whether they have been psychologically affected by the scarring.
- Mesothelioma. Most cases will not attract the 10% Simmons v Castle increase, only “a few (if even that)” will have reasons particular to them which would attract the uplift;
- PVS. The Judicial College Board felt that a separate category for this type (persistent vegetative state) was not necessary and these awards will fall within existing guidelines.
- Technological and medical advances. In more serious cases, the guidelines reflect assessments made by the courts which may have been influenced by current technologies and medicine. The pace of technological and medical advance has been quickening, increasing life spans and extending the length of chronic or lifetime injuries and/or improving function and recuperation. It could therefore be argued in individual cases that such advances may justify an award outside the guidelines.
- Duration of symptoms. It is recognised that recovery may not occur at an even pace and could be more marked in the 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.”
- Pre-Jackson cases (more correctly, pre-Simmons cases). Figures remain for these claims given that there are still many cases to which the previous regime applies which have yet to reach a final hearing.
- Whiplash. The Government intends to compensate whiplash injuries on a distinct legislative basis. The detail of the proposed legislation was not available at the time of publication but readers are advised to remain alert to such changes – very likely on regulations to be made under powers in the yet-to-be-published Civil Liability Bill 2017/18 – being implemented before publication of the next edition of the guidelines (which we’d expect to be in autumn 2019).
Written by Judith Davison, professional support lawyer at BLM