Briefing Note on Fifth Edition JSB Guidelines for Assessment of General Damages in Personal Injury Cases in Northern Ireland (Published 25th February 2019)

25 February 2019

Briefing Note on Fifth Edition JSB Guidelines for Assessment of General Damages in Personal Injury Cases in Northern Ireland (Published 25th February 2019)

The Latest version of the “Green Book” (Fifth Edition) was published on 25th February 2019, almost six years after the publication of the previous Fourth Edition.    For access to an online copy, please refer to https://judiciaryni.uk/publications/green-book-guidelines-assessment-general-damages-personal-injury-cases-northern-0

The introduction to the Fifth Edition of the Green Book by Lord Justice Stephens acknowledged that, just as with previous editions, the value of general damages had once again been adjusted for inflation by the application of the Retail Price Index (RPI).   In the previous Fourth Edition, published March 2013, the figures were current and up-to-date at that time.     In the foreword to the Fourth Edition, Lord Justice Girvan noted that “As each year goes by, Courts in assessing damages should take into account the effect of RPI inflation over time when assessing the appropriate damages in individual future cases”.

In a significant departure from the approach taken to the Fourth Edition Guidelines, the current JSB Committee decided to factor forward for inflation, “applying RPI at its present rate” to the midline of the next five years – which would take us to a point 2 ½ years into the future.  

A number of significant issues arise from this approach:-

• Without more to analyse in terms of how the JSB Committee arrived at the percentage increases, which are now reflected in the Fifth Edition Guidelines, one can only assume that the new/current figures comprise:-
  • The March 2013 Fourth Edition figure plus
  • 5 years RPI to the date of completion of the Fifth Edition – signed off on 10th December 2018 plus
  • 2 ½ years future RPI inflation ie to mid-2020.  
  
  On that basis, an increase of 22.82% would be expected to be reflected within the new Fifth Edition figures.

• The clear and obvious concern is that over the next 2 ½ years, there is in fact clear over-compensation – whereas in the remaining 2 ½ year period the potential for under-compensation.

• The current JSB Committee’s approach to future proofing inflation in this way, was to guarantee that settlements would reflect an RPI inflationary factor.   The Committee’s experience was that, since the publication of the Fourth Edition, an RPI inflationary increase had not been applied to individual cases.   I would imagine that very many defence practitioners would take issue with that assessment.    In terms of cases settled, each side is at liberty to interpret and apply the JSB Guidelines to each individual case and if a settlement has not taken account of an inflationary effect, despite the introductory comments to the Fourth Edition, is this something that required intervention of this type?  In terms of reported Judgements in the High Court, there are numerous examples of cases where the need to reflect the affects of inflation, are expressly noted.
  
  
  • Burgess J recognised the need for an inflationary increase to the valuation of mesothelioma cases, increasing the Fourth Edition range from £70,000 to £130,000 to a “present day range of between £77,000 and £140,000 (McDowell Deceased .v. Fisons Limited [2017] NIQB 136).
  • Stephens J in two cases in 2016 and 2017 expressly commented that the rate of inflation over the period of time since the Fourth Edition was published (2013) had been low and accordingly, he only factored this into account “…to a very modest extent in the most general way”.  (Loney (a minor) .v. McDonald and MIB [2016] NIQB 69; JM (a young person) .v. NIHSCT [2017] NIQB 6). 

• Is RPI the correct index?  It has been consistently used for the previous Northern Ireland versions of the Guidelines and also within the English equivalents.   There are however, significant weaknesses with the RPI and the Office for National Statistics had previously indicated that “… we do not view the RPI as a good measure of inflation”.  It has the potential to overstate inflation and therefore in itself, may have an additional inflationary effect.  

I will set out below an extract from the new Fifth Edition with a comparison to the former Fourth Edition figures in terms of percentage increases.  It is readily apparent that whilst broadly there has been an increase in valuations in the 20-25% category, there are significant anomalies in a number of the injury classifications.

It is interesting also to note that in relation to Minor Soft Tissue Injury cases, there was no increase applied to the Fourth Edition figures on the basis that the Committee considered that they remained adequate and would remain so for the next five years.     On the same theme, in the opening paragraph of the introduction, Lord Justice Stephens noted that,

“Particularly in relation to minor soft tissue injures, an assessment of an individuals credibility may result in awards, if any, considerably lower than the figure suggested, recognising that expert medical evidence, which is only a part of the evidence can be tempered or rejected”.

This is the first overt reference (in the Guidelines) to credibility being flagged up as a factor in the judicial assessment of an appropriate award for general damages.   A statement of the obvious but nonetheless, the first express reference to it and perhaps a reflection of the general debate which is taking place within the UK and in Ireland, on the issue of whiplash compensation culture and reform. In Ireland the final report of the Personal Injuries Commission, highlighted the level of whiplash compensation (benchmarked at a multiple of 4 to 5 on the equivalent English awards).   The Law Reform Commission in the south is to consider legislation to cap or delimit the damages a Court may award. In England and Wales the 2018 Civil Liability will permit a statutory tariff, as distinct from the Judicial Guidelines, for whiplash compensation in cases where symptoms have resolved under two years.  A clear insight was given by the UK Supreme Court on 13th February 2019 where Lord Briggs acknowledged that the extent of dishonest whiplash claims was “…already such a blot upon civil litigation that Parliament has considered it necessary to intervene to limit that abuse”.  The approach therefore taken by our Committee in Northern Ireland to essentially hold lower value whiplash claims at 2013 (Fourth Edition) valuation, reflects a more cautious approach.   In the absence of an effective executive at Stormont to bring forward appropriate legislation and to drive the reform agenda, it is perhaps a reflection of what can be achieved.  By expressly referencing credibility as part of the judicial task in assessing the level of compensation (if any), it is to be hoped that the newly published Fifth Edition is a reflection of a renewed rigorous approach by the Courts.   

Should you have any queries, please contact our defence litigation team.

Briefing note: by Kevin Shevlin, Managing Partner, 27th February 2019
kshevlin@murphy-orawe.com