The Judicial College Guidelines (16th Edition) – What Has Changed?

INTRODUCTION

On Monday, the 16th edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (JC Guidelines) was published. In this feature article, therefore, we seek to compare the newest edition against the previous (15th) edition by mirroring the format employed in issues 20 (here), 114 (here), 201 (here) and 297 (here) of BC Disease News.

THE LEGAL STATUS OF THE GUIDELINES

We must reiterate that the status of the Guidelines is only that of guidance – they are not enshrined by law and can be departed from if the circumstances of the case so require.

As evidence of this, Mr. Justice Holland noted, at paragraph 7 of his judgment in Cameron v Vinters Defence Systems Ltd [2007] EWHC 2267, that the Guidelines provide the starting point, but judges may deviate from this position, providing that said deviation can be justified:

‘Turning myself into a jury, my starting point has to be the Guidelines — I can depart from such, but only with justification. I remind myself of the point made by David Foskett QC sitting as a High Court Judge: “… it is an invidious exercise to draw fine distinctions between the suffering of victims of mesothelioma. It is a most dreadful terminal disease with extremely painful and distressing symptoms. That consideration remains whether those symptoms have been endured over merely a matter of months or for a year or longer.”’

Accordingly, the facts of the case must be regarded as the ultimate determinative factor in any award of damages.

HOW DO SUCCESSIVE EDITIONS OF THE GUIDELINES DIFFER?

It has been two years since the publication of the 15th edition of the Guidelines and approaching 30 years since the 1st edition of the Guidelines (formerly the Judicial Studies Board Guidelines (JSB Guidelines)] was published.

Successive editions of the Guidelines, with the 16th edition being no exception, are a distillation of new court decisions on quantum and changes in policy. They also reflect inflationary changes realised during the editorial period, which means that it is commonplace for figures to increase with time.

As at September 2021, the general increase in retail price index (RPI) since the release of the 15th edition was 6.56% and the persistent upward trend was described as ‘slow but steady’. Steady, indeed, as it closely mirrors the RPI increase of 7% between May 2017 and June 2019, which underpinned the 15th edition figures. Spiking inflation in 2022, which has frequently made headline news, was not considered by the editorial team on this occasion.

Interestingly, the editorial team observed ‘remarkably few’ reported case decisions on damages since the 15th edition, with some injuries benefitting from no recent decisions. In such instances, the bracket figures have simply been uplifted for inflation.

As in previous editions, many of the figures have been rounded up or down to provide sensible and realistic brackets, within which awards for general damages comfortably fall.

LEAVING THE PRE-UPLIFT FIGURES (ALMOST COMPLETELY) BEHIND

For the first time in the 16th edition of the JC Guidelines, the decision has been made to only include uplifted figures for general damages (with the exception of damages for mesothelioma).

The uplift is rooted in the case of Simmons v Castle [2012] EWCA Civ 1288, in which the Court of Appeal determined that awards of general damages should be increased by 10% in all personal injury cases where judgment is given after 1 April 2013, save for when s.44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) applies – where claimants have entered into relevant conditional fee agreements (CFA) prior to 1 April 2013.

Primarily, the 10% uplift has served as a means of compensating personal injury claimants for ‘success fees’, charged by solicitors to their clients under the terms of a CFA, which ceased to be recoverable from losing opponents post-LASPO. The ‘success fee’ essentially became a costs-related loss for claimants to meet out of their damages.

When drafting the 16th edition, the editorial team formed the view that there are now likely to be ‘vanishingly few’ ongoing cases in which pre-uplift figures will be relevant, to the extent that:

‘… the number is now insufficient to justify the inclusion of both figures’.

As mentioned above, the JC Guidelines still provide pre-uplift figures in bracket 6(C)(a), for victims of mesothelioma, whose cases are dealt with under pre-LASPO CFAs, i.e. exempt from the abolition of recoverable ‘success fees’. In short, a 10% uplift would only apply in a mesothelioma claim if it proceeded on a different (non-CFA) funding basis.

What is more, the Judicial College accepts that in jurisdictions where the Simmons uplift is not recognised, for example, pre-uplift figures will remain relevant to practitioners. In circumstances where it is necessary to convert uplifted figures back to pre-uplift figures, the stated figure in the 16th edition needs to be multiplied by a factor of 0.909.

TABLES OF COMPARISON BETWEEN THE 15TH AND 16TH EDITIONS

In this – the main section of the feature article – we provide a tabular comparison between the 15th and 16th editions of the Guidelines. Brackets most relevant to the disease market have been subjected to this analysis.

N.B. In each table, there is a column containing the percentage and pounds difference between the figures in the 15th and 16th editions, at the upper end of the award for each bracket.

We use this column to examine how closely damages inflation in the 16th edition mirrors RPI inflation.

Moreover, we identify any structural, or linguistic alterations made to the relevant Chapters and speculate over the effects of new/revised figures on claims trends and practical handling.

Chapter 4 – General Damages for Psychiatric and Psychological Damage

Across the whole of Chapter 4, increases in damages from the 15th to 16th edition fall in line with RPI.

Eagle-eyed readers may have noticed that there is new Chapter 4(C), entitled ‘Sexual and/or Physical Abuse’.

Previously, in Chapter 4(A), it was acknowledged that claims involving psychiatric or psychological damage often include physical or sexual abuse and injury.

However, after the 15th edition was released, the Independent Inquiry into Child Sex Abuse reported the conclusions of its Accountability and Reparations Investigation and recommended the creation of a free-standing category reflecting awards for sexual abuse. The Judicial College commented that there were ‘strong arguments’ in support of this, ‘given the particular features which often arise in such cases: breach of trust; the inability to form or maintain emotional and sexual relationships; the impact of the abuse upon education; and the effect on the victim of the, often, long interval before the fact of the abuse being reported’.

The inauguration of Chapter 4(C), as a sub-category of psychiatric injury, is therefore an endorsement of the Investigation’s recommendation.

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Chapter 5 – General Damages for Injuries Affecting the Senses

As can be seen in the table below, general damages inflation across the Chapter on ‘Deafness/Tinnitus’ ranged between 6.5% and 6.7%, which is consistent with RPI inflation. The greatest increase in the 16th edition is assumed by ‘Mild tinnitus with some hearing loss’.

When we last reviewed the 15th edition of the JC Guidelines, we documented the insertion of bracket (d) in Chapter 5(B), called ‘Mild tinnitus alone or mild NIHL alone’, yielding damages at the upper end of the ‘Slight or occasional tinnitus with slight NIHL’ bracket (around £11,000 with 10% uplift).

At the time, the inclusion of a 6th bracket led us to question whether there would be an upsurge in the number of ‘tinnitus only’ claims, but no such development has materialised. The health of the personal injury claims market has undoubtedly been weakened by the COVID-19 pandemic, but whether or not this is why ‘tinnitus only’ claims have not yet taken off is unknown.

New to the latest edition is bracket (e) in Chapter 5(B), encompassing the ‘Acceleration of, or time-limited need for, the use of hearing aids’. Providing more detail on what general damages are intended to compensate, the narrative explains that:

‘In some cases it is possible to identify a period for which hearings aids have been needed, e.g. … the period of acceleration for sensorineural hearing loss. Awards may be expected of between about £5,000 for five years and about £9,700 for 15 years’.

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Chapter 6 – General Damages for Injuries to Internal Organs

Chapter 6 of the JC Guidelines includes damages on ‘Asbestos-related disease’, on ‘Asthma’ and on ‘Hernias’.

Throughout the Chapter, most uprated damages in the 16th edition run parallel with RPI, at between 6.5% and 6.6%.

However, there is one obvious outlier, that being bracket (d) of Chapter 6(C), regarding ‘Asbestosis and pleural thickening – where the current level of respiratory disability/lung function impairment attributable to asbestos is up to 10%’.

Alarmingly, the maximum amount of general damages has actually decreased from the 15th to the 16th edition of the Guidelines, by 1.6% (or £560).

The top end of (d) and thus the bottom end of bracket (c), in respect of ‘Asbestosis and pleural thickening – where the current level of respiratory disability attributable to asbestos will typically be in excess of 10%’, has dropped from £36,060 to £35,500.

The only foreseeable explanation for why this has occurred is that, where the JC Guidelines before stated that the level of an award in these brackets would be ‘influenced’ by whether it is on a final or provisional basis ‘and also the extent of anxiety’, the 16th edition states that:

‘Brackets (c) and (d) above represent an award of general damages on a provisional basis, with the triggers for the right to return for further damages typically being the development of cancer, mesothelioma, or a significant increase in respiratory disability. An award should be increased to take account of those risks if made on a full and final basis’.

Semantically, therefore, the newest edition emphasises that the figures published for asbestosis and pleural thickening are only on a provisional basis. As a result, the breadth of damages for (c) is narrower and the scale of damages for (d) is wider.

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Chapter 7 – General Damages for Orthopaedic Injuries

When the 15th edition was first issued, we reported that Part 1 of the Civil Liability Act 2018 was not yet in force.

Part 1, of course, provided for the introduction of road-traffic accident (RTA) claims reform and a fixed tariff scheme for soft-tissue whiplash injuries up to the value of £5,000 (the new small claims limit).

We previewed that once the reforms were implemented, various brackets within Chapter 7 would become redundant in cases caught by the Act.

Since edition 297, we have produced content (see here) on The Whiplash Injury Regulations 2021, through which these reforms were effected.

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Accordingly, the 16th edition of the JC Guidelines stresses that general damages for whiplash injuries caught by the 2018 Act (RTA occurring after 31 May 2021) will be determined by reference to the legislative tariff and not the Guidelines themselves. Whether and to what extent injuries come within the scope of the legislation is a matter for interpretation on applicability.

Generally speaking, Chapters 7(B) and 7(G), comprising of damages for ‘Back injuries’ and ‘Elbow injuries’, respectively, exhibit RPI inflation alone in the latest iteration of the Guidelines. Indeed, almost all increases over the 15th edition are no less than 6.2% and no more than 6.7%.

That being said, bracket (c)(ii) of Chapter 7(G) increased considerably, by £610 (10.4%), and this is undoubtedly due to low-value RTA reforms.

With the fixed tariff scheme incorporating whiplash injuries lasting for up to two years, it is unsurprising that bracket (c)(ii) now explicates that full recovery from an elbow injury within 18 to 24 months will bring about awards ‘likely to fall below £5,000’. Because of this, the upper limit of (c)(ii), intended for those with persistent ‘nuisance level symptoms’, has shifted more dramatically than any other bracket in the Chapter.

Another structural modification to Chapter 7 is the addition of a 4th bracket for minor back injuries.

Bracket (c)(ii) in Chapter 7B has essentially been split in half to make it easier to distinguish between damages for back injuries lasting one year and back injuries that can be fully recovered from within a period of one to two years. In so doing, the Chapter gives supplementary direction on how to navigate around the revised small claims limit for RTA, with (c)(ii) asserting that:

‘Only cases at the very bottom end of this bracket will be worth less than £5,000’.

Unlike with Chapter 7(G), where allusion to the £5,000 figure appears to encompass most uncomplicated elbow injuries in the relevant bracket, Chapter 7(B) gives the impression of being less influenced by the entirely separate RTA tariff regime.

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Chapter 8 – General Damages for Work-related Limb Disorders

A ‘substantive change’ made to the 16th instalment of the Guidelines has been the conception of a new Chapter 8, dedicated to ‘Work-related Limb Disorders’.

Practically speaking, what this means is that the former Chapter 7(J), on damages for ‘Vibration White Finger (VWF) and/or Hand Arm Vibration Syndrome (HAVS)’, has been moved to Chapter 8(A); the former Chapter 7(K), on ‘Work-related Upper Limb Disorders’, has been cut and pasted as Chapter 8(B); and there is a wholly bespoke Chapter 8(C), which has been devised for both freezing and non-freezing ‘Cold Injuries’.

Examples of freezing cold injuries (FCI) include frostnip and frostbite. Comparatively, non-freezing cold injuries (NFCI) can lead to soft tissue, nerve, or vascular damage.

Damages for ‘Cold Injuries’ could start from anywhere around £15,000, in the least serious cases, to damages in the region of those typically awarded in ‘Chronic Pain’ litigation, in the most severe cases – see Chapter 9.

Meanwhile, Chapters 8(A) and 8(B) emulate RPI inflation, with increases of 6.5% to 6.7% over the figures in the 15th edition.

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Chapter 9 – General Damages for Chronic Pain

Looking at the table below, it is palpable that, of all the Chapters in the 16th edition of the JC Guidelines, brackets covering damages for ‘Chronic Pain’ have followed RPI inflation the closest – all figures have been adjusted upwards from the 15th edition by 6.56%.

In addition, the text accompanying the figures in each bracket of the Chapter (formerly Chapter 8) remains identical to the previous edition.

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Chapter 13 – General Damages for Dermatitis and Other Skin Conditions

The 16th edition annotates that Chapter 13 (formerly Chapter 12) is one of two where there have been no recent decisions for the editorial team to scrutinise. The upshot of this is that figures have simply been updated for inflation, which is why they stand at between 6.5% to 6.6% greater than those presented in the 15th edition.

Nevertheless, there is some concern over the fact that several successive editions of the Guidelines have reiterated the same message – no change. Hence, the Judicial College posits that:

‘Consideration may therefore need to be given as to whether there are any appropriate reasons to revisit the awards based on older case law within this chapter’.

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OTHER SUBSTANTIVE CHANGES

Having received an invitation from the Professional Negligence Bar Association (PNBA) to review the approach taken in previous editions of the Guidelines to reproductive organ damage, the Judicial College has revised the relevant sections of the 16th edition [Chapter 6(E) and Chapter 6(F)] to recognise that injuries leading to ‘sexual dysfunction, loss of sexual function and associated psychological sequelae’ may affect both sexes.

In the past, the Chapter on the female reproductive system has historically focused almost exclusively on damages for ‘loss of fertility and reproductive capacity’.

FINAL THOUGHTS

Relatively few changes have been implemented through the 16th edition of the Guidelines, but the most significant changes, e.g. the deletion of ‘pre-uplift’ figures, should have been made plain in the course of this feature article.

There have been modest increases in general damages in the 16th edition, which, as evidenced by the tables above, have been in the region of 6.5%.

It can be presumed that a thorough review of the Guidelines by the editorial team will take place over the next two years, though this is not explicitly stated in the Guidelines themselves.

The Judicial College quips that the fixed tariff scheme for RTA claims will probably generate ‘interesting and tricky issues’ moving forwards, particularly where the courts are asked to approach awards for damages for soft tissue whiplash injuries in combination with non-whiplash injuries (e.g. tinnitus).

In BC Disease News, we have frequently remarked that it is unclear from statutory provisions (see section 3(8) of the Civil Liability Act) and the supporting Regulations quite how the courts are expected to assess mixed claims of this nature, so reported decisions of judicial determination are awaited with interest.

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Pending further guidance, the College has therefore underscored that the damages tariff scheme ‘falls well outside the scope of the Guidelines’ and that it is not for them to ‘dictate or advise upon the practical effect of the scheme’, i.e. its relationship with the Guidelines.