When damage claims are entirely personal

Since 1992, the Judicial College in England and Wales, previously the Judicial Studies Board, have published guidelines to assist the courts there to quantify awards of damages for pain, suffering and loss of amenity, known as general damages there, and known as solatium in Scotland.

This was done to encourage a more uniform, consistent approach to the assessment of damages for the head of claim relating to the injury. Over the border it has become a starting point and, at times, an end point, for many in the evaluation of awards of damages of this nature. It seeks to be a distillation of the awards of damages that have been, and are being made, in the courts. Diverse types of injury are set out with ranges of damages awards given based on whether they are minor, less severe, severe or very severe. The guidelines recognise no sum of money can ever truly compensate for physical or mental pain and suffering. There is no Scottish equivalent.

The guidelines are not binding in courts in England and Wales, but they are persuasive. The guidelines are also not binding in courts in Scotland. The courts here are often referred to the guidelines along with case law and past jury awards to consider the assessment of damages relating to an injury and apply it to each case. No two cases are likely to be the same, so the courts need to interpret and apply good judgement to reach a fair, just award of damages in each case.

A new 18th edition of the guidelines has been issued. All figures have been uplifted by reference to the Retail Prices Index, therefore an 8.26% uplift on the figures from the 2004 17th edition of the guidelines. It remains to be seen whether the RPI is the appropriate long-term index for the guidelines, but that issue requires to be considered by the courts. Some say that the Consumer Prices Index or that index with owner occupiers’ housing costs included would be a more appropriate index to be applied.

It has also been updated to consider evolving medical knowledge, language and societal awareness of certain injuries. Changes have been made to sections about epilepsy, sexual and physical abuse, and brain injury. A new section has been added relating to miscarriages.

The awards relating to whiplash injuries should be approached with caution as they reflect a fixed tariff regime in England and Wales.

For example when the guidelines are consulted in relation to leg injuries, a simple fracture is valued from £3,240 up to £18,600, a fracture with incomplete recovery is valued at up to £36,680, severe leg injuries without amputation are valued at between £36,680 and £179,560 and amputations are valued at between £129,440 and £372,570 depending on the severity of the injuries and the issues arising from that.

The new guideless are an evolution rather than a radical change in approach. They are of use in Scotland as one source of valuations of injuries but are not the full answer. In an era of ongoing inflation and legal reform, careful evidence-driven valuation of claims is more important than ever.

Andrew Gilmour, partner, HF