Guidelines for the Assessment of General Damages in Personal Injury Cases (Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases)

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Exemplary damages were awarded in sexual abuse claims in Kuddus v CC of LP [2002] 2 AC 122 and AT, NT, ML, AK v Dulghieru [2009] EWHC 225 (QB).

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. For the purpose of performing its functions, the Committee, under Section 18 of the Act, has been given the power to require persons in possession of records, documents or information which might assist it with its work to provide such records, documents or information. It has further been given the power to consult with such persons as it considers appropriate including the Personal Injuries Assessment Board and to conduct such research as it considers appropriate concerning the level of damages awarded by courts in and outside of the State and settlements of claims for personal injuries. The Personal Injuries Guidelines Committee has submitted to the Board of the Judicial Council the first draft of personal injuries guidelines prepared by the Committee pursuant to Section 18 (4), as amended, of the Judicial Council Act 2019. The guidelines also set out the factors to be considered when assessing the severity of the injury. These include the nature and duration of the abuse and injuries, and the effect this has had on the pursuer's ability to cope with life, education and work. Other factors include the effect on personal and sexual relationships; abuse of trust; future vulnerability; and prognosis. It is useful to note that the severity of the accident does not dictate the valuation; it is the severity of the injury that is most important. A non-dangerous accident resulting in significant injuries would be worth more than a serious incident where the Claimant suffered only scratches.

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The Act provides that the guidelines are to be prepared in accordance with Section 90 of the Act. This section requires the Committee, in preparing the guidelines, to have regard to: The guidelines note the increasing march of inflation, and that at the end of September 2021 the general increase in the Retail Price Index since the last edition has been 6.56%. The Judicial College has also decided to remove figures for general damages, which do not include the 10% uplift announced by the Court of Appeal in Simmons v Castle [2012] EWCA Civ 128, on the grounds that there are likely to be very few cases in which the pre-uplift figures will be relevant. 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. In the 15 th edition, the overall introduction to the JCG stated that the editorial board was considering a designated section for claims arising from sexual abuse. That suggests that it was aware that there were still issues with the guidance as drafted. That change of course came with the 16 th edition and is discussed in Part 2 of this blog available here. The Judicial College Guidelines are referred to by solicitors, insurance companies and the courts as a guide only. Your case will be considered on its own merit.

The Guidelines are the first to be published since the Whiplash Injury Regulations 2021 came into effect on 31 May 2021. They contain "new guidance in relation to the application of the tariff-based awards for general damages under the Civil Liability Act 2018". They account for the effects of inflation since the 15th Edition was published in late 2019. Thirdly, (A) says only that aggravated damages “ may” be awarded, not that they “ will” be. There is no guidance as to what sort of cases should attract aggravated damages awards or reasoning for why it should not be all of them.

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The introduction to the guidelines notes that whiplash injuries resulting from road traffic accidents occurring after 31 May 2021 now fall under a statutory tariff, which was implemented by part 1 of the Civil Liability Act 2018 and the Whiplash Injury Regulations 2021. Consequently the guidelines do not cover this type of injury.