Alison Cassidy

The Judicial Studies Board for Northern Ireland has published the fifth Edition of the ‘Green Book’ following the recommendations of a Committee chaired by Lord Justice Stephens. Access to the online version of the Guidelines for the Assessment of General Damages in Personal Injury cases is available here.

The latest edition of the Guidelines provides an increase in the figures for most injuries by around 20 per cent. Although this is certainly a significant one-off step change, it is the inevitable result of uprating the figures in the previous edition, published in 2013, to take account of inflation since then.

The expectation of the previous JSB Committee when producing the previous fourth edition, was that those figures would be increased by practitioners and the courts to take into account the effect of ongoing inflation rises. The current Committee’s experience however was that that did not happen and therefore, the new fifth edition has factored forward inflation, applying the Retail Prices Index (RPI) inflation at its present rate up to the midline of the next five year period. The new edition figures are made up of:

1. 2013 base figure +
2. five years actual inflation to end 2018 +
3. 2½ years future inflation to mid-2020.

The rationale for this approach by the Committee was that this edition will remain applicable for the next five years. Many will be concerned that this will produce over-compensation (for inflation) for claims resolved in the first half of the five year period and under-compensation for those resolved in the second half.

The guidelines for the assessment of some injuries have increased much more substantially and go far beyond inflation, for example the top bracket for chronic bronchitis or chronic obstructive airway disease (Category 6 B(h)) has increased from £28,000 to £50,000, a staggering 79 per cent. Other examples of more substantive increases recommended by this latest edition are set out below. Another change to the fifth edition has been the introduction of guidelines for the assessment of pleural plaques at Category 6(B)(a) with a range of £3,500 to £17,500.

Minor soft tissue injuries

A number of minor neck and back injury categories have seen the “starting point” figure removed although the ranges remain largely unchanged from the previous edition as the Committee felt these figures were “adequate” and did not require an increase based on the Retail Price Index (RPI). This ‘no inflation’ approach to whiplash damages contrasts with both England & Wales and the Republic of Ireland. The Committee did comment that in respect of minor soft tissue injuries the assessment of an individual’s credibility may result in awards, if any, considerably lower than the guidelines recognising that expert medical evidence, which is only a part of the evidence, “can be tempered or rejected”.

In England and Wales, part 1 of the Civil Liability Act 2018 provides powers for a statutory tariff – rather than judicial guidelines – of damages to be set for whiplash injuries in which symptoms are resolved in under two years. The new tariff is expected to apply from April 2020 and could well result in general damages for whiplash falling by between 20 and 60 per cent. The UK Supreme Court commented earlier this month that: “The extent of dishonest claims for minor personal injuries such as whiplash (which are difficult to disprove) in road traffic accident cases is already such a blot upon civil litigation that Parliament has considered it necessary to intervene to limit that abuse.”

There are some reports of a similar approach being considered in Ireland, following the Cost of Insurance Working Group and the Personal Injuries Commission both identifying high whiplash awards as an area of concern. For example, The Irish Times recently reported that the Chief Justice has been tasked with forming a group to deliver reductions in whiplash awards via the update to the Book of Quantum due to be published in the second half of 2019.

Background

Guidelines for the Assessment of General Damages in Personal Injury Cases first appeared in 1996. The Committee reinforced that since its inception it has proved to be an invaluable tool for practitioners and courts in the assessment of damages in personal injury cases. As Sir John MacDermott made clear in his introduction to the first edition in 1996, the Committee emphasised that the figures suggested in the guidelines should not be applied mechanistically. These guidelines are to be applied with caution and discretion as “suffering is very individual. The just and fair recompense for injury and the consequences of injury should be tailored to that individual.”

The Committee recognised the potential effects of changing social attitudes to particular injuries or disabilities on the assessment of an award. Also the impact of certain injuries may be affected by further medical knowledge which may increase the significance of an injury or by virtue of technological advances to ameliorate some of the worst effects of certain conditions. The Committee chose to leave any consequential re-assessment of an award in these instances to the determination of a Judge having heard and evaluated all the evidence in an individual case.

• Alison Cassidy is a partner at BLM in Belfast. View her profile here.