In an earlier article, we discussed the 11th edition of the Judicial College’s “Guidelines for the Assessment of General Damages in Personal Injury Cases”, referred to by practitioners as the “JCG”. These Guidelines are produced by the judiciary and they will always be a judge’s first point of reference when assessing a general damages award.
General damages is the term used by lawyers to describe the non-monetary aspects of a claim and, more specifically, to describe damages for the actual injuries themselves, as opposed to the financial losses resulting from those injuries (lost earnings, treatment costs, care costs etc), which are usually referred to as special damages.
The purpose of general damages is to compensate the claimant for pain, suffering and loss of amenity. However, general damages in this country are no more than a token award and, frankly, the amount of general damages can appear insulting, particularly to a claimant who has suffered a life changing injury or developed a chronic condition.
Much to the surprise of many practitioners, the usual two years or so between editions of the Guidelines was dramatically shortened as the 12th edition appeared only a few months following publication of the 11th edition. The reason for this becomes clear when reading the foreward to the Guidelines by Sir Vivian Ramsey, the judge appointed to oversee the implementation of Sir Rupert Jackson’s civil litigation costs reforms.
A fundamental aspect of the seismic change to the civil litigation landscape has been a push towards encouraging negotiation and early settlement. In his forward, Sir Vivian says “Parties are being encouraged to use ADR [alternative dispute resolution]. New provisions add an extra 10% to claimant’s damages if the defendant fails to beat a claimant’s Part 36 offer.”
Whilst the new figures do reflect an inflationary rise of around 2.8%, the more significant reason for the early publication of the 12th edition was to incorporate the additional 10% uplift, which appears as a separate column.
In terms of the section on Chronic Pain, there has been little change from the 11th edition, which in itself represented a significant revision and extension from past editions, indicating that judges are now taking chronic pain more seriously.
The guidelines set out factors to be taken into consideration by judges when assessing awards of general damages in respect of all chronic pain conditions. Those factors are as follows:
- the degree of pain experienced;
- the overall impact of the symptoms (which may include fatigue, associated impairments of cognitive function, muscle weakness, headaches etc and taking into account of any fluctuation in symptoms) on mobility, ability to function in daily life and the need for care/assistance;
- the effect of the condition on the injured person’s ability to work;
- the need to take medication to control symptoms of pain the effect of such medication on the person’s ability to function in normal daily life;
- the extent to which treatment has been undertaken and its effect (or its predicted effect in respect of future treatment);
- whether the condition is limited to one anatomical site or is widespread;
- the presence of any separately identifiable psychiatric disorder and its impact on the perception of pain;
- the age of the claimant;
- prognosis.
Clearly, general damages form just one of (often) many heads of damage in a personal injury claim. In larger and more complex claims such as those involving chronic pain, reaching an overall valuation is often a lengthy process and dependent upon a whole variety of factors, including (importantly) the opinion of medical and other expert witnesses.
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