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. Judicial College Guidelines 16th Edition: Damages for Noise Induced Hearing Loss - Jim Hester, Parklane Plowden Chambers Aggravated damages are compensatory in nature, not punitive, as set out in Rookes v Barnard [1964] AC 1129. The Law Commission recommended statutory clarification of this point in 1997 noting that the label of “ aggravated damages” was somewhat misleading, suggesting instead “ damages for mental distress” (report, para 1.9). That recommendation was rejected. 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. All practitioners should familiarise themselves with the new guidelines in respect of their individual practice areas. We understand that the new guidelines will be available through the usual legal online resources shortly.

It is imperative to note that the Guidelines are only guidance, they are not law. In addition to the Judicial Guidelines it is always helpful to have knowledge of similar case law to help determine the likely value of the claim. Such relevant case law will depend on facts such as, similar injuries sustained and similar age of the Claimant injured in a similar accident. One other important factor to take into consideration is whether the Claimant is male or female. For example a female victim who has suffered an injury to the face will generally recover more damages than a male. The circumstances of the case must be regarded as the ultimate determinative factor in any award for general damages. The new Chapter 4(C) covers both the physical and psychiatric consequences of the abuse in one award. While that has always been the Scottish approach to an award for solatium it is helpful to all parties to have clear guidance on these cases. There is also the removal of the column for damages without the 10% uplift following Simmons v Castle [2013] 1 WLR 1239 with the figures given now including the 10% uplift as standard.iii)the principles for the assessment and award of damages for personal injuries as determined by the High Court, Court of Appeal and Supreme Court View The Personal Injuries Guidelines hereand a Report and FAQs in relation to the Guidelines follow 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). The figures in the latest edition reflect the 6.56% increase in RPI since the 15th edition and are given as neatly rounded figures. Where there have been no recent decisions in relation to specific types of injury, the inflation uplift may be the only discernible change.

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. 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 Practitioners will be comforted to learn, not that much. There are, however, a handful of changes lawyers need to be aware of when calculating General Damages: 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. In some ways this might be considered to be a variation of section (d). If a claimant is able to prove NIHL of, say 7 dB which could be considered under section (d), then there is likely to have been an acceleration in the need for hearing aids, or there will be.There is also a revision of the approach taken to assessing damage to reproductive organs which, previously in women, focused almost exclusively upon loss of fertility and reproductive capacity. The Judicial College recognises that injuries leading to sexual dysfunction, loss of sexual function, and associated psychological sequelae may affect both men and women. The relevant sections can be found at Sections E and F of chapter 6 and they provide more detail than in the previous edition of the guidelines. This head of loss is not recoverable per se in claims arising from negligence but is recoverable in claims arising from trespasses to a person. Aggravated damages arise where there is “ exceptional or contumelious conduct or motive on the part of a defendant in committing the wrong or … subsequent to the wrong” causing “mental distress” to the claimant (Law Commission report 247, para 1.3). That is, they arise because of the tortfeasor’s behaviour which does not necessarily have to occur at the same time as the abusive act. A common example of this in civil claims arising from abuse is where a perpetrator refuses to admit the abuse in criminal proceedings before eventually being found guilty.

The authors hope that the two parts of this post will be read together but for those short on time, they can be read in isolation.The 15th edition of the Judicial College Guidelines for the assessment of damages in personal injury cases was published on the 26th November 2019, more than two years after the previous edition. The first reference is in the preamble to the chapter and has remained the same for 20 years. Edition 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. Chapter 8: this is a new chapter, separating upper limb injuries (HAVs, WVF and WRULD) from the previous chapter 7 and providing guidance on awards for cold injuries (there is a consequential re-numbering of subsequent chapters).