Insurance & Reinsurance
This content was written by BLM prior to its merger with Clyde & Co.
The new edition of the JC guidelines was published in hard copy this week and, as expected, makes across-the-board adjustments for RPI inflation to the recommended guidelines for all categories of all personal injuries.
The headlines from this new edition are that:
(i) The RPI adjustment to allow for the period between the new and previous edition is 6.56%
(ii) The pre-Simmons v Castle column (for cases funded by pre-LASPO CFAs) has now been omitted (save that the guideline figures for mesothelioma claims are still on a pre-LASPO basis because the Act was not commenced for those cases)
(iii) There is a new section on damages for sexual and physical abuse, as was recommended by the Independent Inquiry into Child Sexual Abuse, and
(iv) It offers no clues as to the approach that may be adopted in claims involving whiplash and other injuries.
There are vanishingly few categories of injury where the adjustment is noticeably different from the RPI figure, albeit that the guideline amounts provided are, of course, rounded as necessary.
The statutory tariff for whiplash injuries (as defined in the Civil Liability Act 2018 and associated regulations) is included in the guidelines. The narrative in the introduction and foreword notes only that how it operates in practice in claims involving a tariff award and another injury will need to be determined by the courts in due course: “It is unclear from the statutory provisions and the regulations quite how the courts are expected to assess general damages in those cases where a claimant suffers both a whiplash injury and a non-whiplash injury … Again, further guidance will doubtless be provided by the courts in due course.”
It is worth noting that the new edition nevertheless provides RPI-adjusted figures for minor neck injuries. These remain relevant in non-motor neck injury claims and for claims from those vulnerable road users who are excluded from the May 2021 whiplash reforms [the RPI adjustment here obviously increases the disparity between the common law awards and the statutory tariff].
In respect of injuries of the utmost severity - both tetraplegia and very severe brain injuries - the upper bound of the relevant guidelines has risen to over £400,000. We believe this is the first time that general damages in England & Wales have breached that figure.
It should be noted that although there are some cosmetic changes to the chapters in the guidelines, the relevant figures generally remain consistent with the overall RPI adjustment. These are the main such changes.
Chapter 4: includes a new section providing guideline figures for claims involving sexual and/or physical abuse, in response to a recommendation from IICSA.
Chapter 6: there are slightly different descriptions and ordering of the categories of injuries to the reproductive organs (for males in particular).
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).
We expect that the figures from this new edition will appear on legal reference sites and in proprietary software for valuing cases within a week or two.