Assurance et réassurance
The 16th edition of the Judicial College Guidelines for the assessment of general damages in personal injury cases was published on Monday. The new edition of the guidelines includes a specific category for damages for sexual and physical abuse. While the guidelines are not binding in Scotland the new brackets will be treated as persuasive.
Practitioners across Scotland regularly use the JC Guidelines to inform and advise on the likely awards for damages in Scotland. A key element that has been missing is a specific category for abuse cases. A new category is to be welcomed and was a recommendation of the Independent Inquiry into Child Sexual Abuse.
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.
The brackets in this new chapter are:
The guidelines set out that the majority of cases are expected to fall within the range £55,000-£90,000. The Judicial College clearly expect the majority of cases to be "severe". These brackets are similar to the awards made in recent years by the Scottish courts, which provides further support for their use in future cases.
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.
Aggravating factors could lead to an additional award. These factors include: the nature of the abuse; level of abuse of trust; any manipulation to stop the pursuer reporting the abuse or to put the blame on the pursuer; and the need for the pursuer to give accounts in criminal and civil proceedings.
The updates to the guidelines include adjustments for inflation across all categories. This new edition also sees the removal of the column for damages without the 10% uplift following Simmons v Castle  1 WLR 1239. The decision in Simmons v Castle does not apply in Scotland and practitioners this side of the border are used to relying on the now defunct column. Scottish practitioners should do their own mental arithmetic to reduce the sums, rather than default to the higher award. They should also get used to reminding courts why that column existed.