Key considerations (and a warning!) for those dealing with Scottish personal injury claims following the publication of the 16th edition of the Judicial College guidelines

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Those operating in the personal injury industry will no doubt be aware of the publication of the latest edition of the Judicial College Guidelines in April 2022.

There is no exact science when it comes to assessing personal injury claims and ultimately it is up to the judge in each individual case to assess the level of compensation to be awarded for general damages or solatium to use Scottish terminology. That said, the guidelines have been around for 30 years and are used by both judges and practitioners as a guide to help inform decisions about what level of attribution might apply in a given case. The guidelines are informed by a review of court awards in individual cases as well as consideration of value for money and one of the aims is to try to achieve consistency in the extent possible when it comes to cases that are all unique in their own way.

One of the main changes from the 15th edition is to adjust the figures contained in each bracket for RPI inflation (6.56%). Another significant change is the removal of the column (in most cases) which provided figures for general damage without the application of the 10% mark-up which was introduced in England and Wales primarily to reflect the result fees were no longer recoverable following the implementation of the Jackson reforms in 2013.

Scottish claims

The significance for those dealing with Scottish claims is that for most categories the figure shown will be 10% higher than the damages applicable in Scotland and a calculation will be required to convert the increased figure to a pre-lift figure. This can be done by simply multiplying the figure by a factor of 0.909. An example is included below for illustration purposes.

Chapter 4 16th edition (elevation figures) Conversion calculation Pre-uplift figures
Psychiatric and psychological damage £54,830 to £115,730 £54,830 x 0.909 £49,840 to £105,200
(A) Psychiatric damage in general (a) Serious £115,730 x 0.909)

Other Changes

Other changes include a new section in Chapter 4 for psychiatric and psychological damages for “sexual and/or physical abuse”. This stems directly from the Independent Child Sexual Abuse Inquiry. A new chapter has also been added (chapter 8) for work-related limb disorders such as white finger vibration to separate these injuries from the chapter on orthopedic injuries (chapter 7). In addition, a new category has been added (8(C)) for “cold injuries” to include injuries caused by freezing (eg, frostbite) and injuries not caused by freezing. Changes have also been made to Chapter 6 (F) Reproductive System: Female. Previously, the main focus was on loss of fertility and reproductive ability, while the range has now been changed to recognize loss of sexual function, etc. and the psychological impact associated with such injuries.

Summary

As stated above, the guidelines are just that, and the final decision is up to the court considering all available evidence which will differ from case to case. Caution should be exercised when using the guidelines, particularly in cases involving multiple injuries where it is important to consider any overlap when determining how injuries are likely to be assessed by the court. No two cases are the same and therefore it is important to consider previous reported court decisions when considering what a court is likely to award in a given case. Finally, and most importantly, for those with claims in Scotland, caution is warranted as the pre-uplift calculation must be made in each case to avoid overinflating the value of claims in that jurisdiction.

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