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Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland



The Judicial Studies Board for Northern Ireland

Guidelines for the Assessment of

General Damages in Personal Injury Cases

in Northern Ireland

(Fourth edition)
Published on 4th March, 2013

Introduction by



The Right Honourable Lord Justice Girvan

ACKNOWLEDGEMENT


The Judicial Studies Board for Northern Ireland gratefully acknowledges the work done by the Committee in producing these guidelines.  The members of the Committee were: The Honourable Mr Justice Horner, His Honour Judge Smyth QC, His Honour Judge Grant (Recorder of Londonderry), His Honour Judge Devlin, District Judge Collins, Mr Dermot Fee QC, Mr Gerald McAlinden QC, Mr Brian Stewart of O'Reilly Stewart, Solicitors and Mr Gareth Jones of C&H Jefferson, Solicitors, under the chairmanship of The Right Honourable Lord Justice Girvan. The Honourable Mr Justice Gillen, Senior Queen’s Bench Judge, kindly acted as a consultant to the committee on this occasion.

© The Judicial Studies Board for Northern Ireland
CONTENTS




Guidelines

Page













Contents

1-2













Introduction to the Fourth Edition by The Right Honourable Lord Justice Girvan

3-4













Introduction to the First Edition by The Right Honourable Lord Justice MacDermott

5-6










1.

Injuries resulting in Death

7










2.

Injuries involving Paralysis

8










3.

Head Injuries

9










4.

Psychiatric Damage

12




  1. Psychiatric Damage Generally

12




  1. Post-traumatic Stress Disorder

13










5.

Injuries affecting the Senses

14




  1. Injuries Affecting Sight

14




  1. Deafness

14




  1. Impairment of taste and smell

15










6.

Injuries to Internal Organs

17




  1. Chest Injuries

17




  1. Lung Disease

18




  1. Digestive System

18




  1. Reproductive System

19




  1. Kidney

20




  1. Bowels

20




  1. Bladder

21




  1. Spleen

21




I. Hernia

21

7.

Orthopaedic Injuries

22




  1. Neck Injuries

22




  1. Back and other Upper Body Injuries

24




  1. Injuries to Pelvis and Hips

25




  1. Amputation of Arms

26




  1. Other Arm Injuries

27




  1. Shoulder Injuries

27




  1. Injuries to the Elbow

28




  1. Wrist Injuries

28




  1. Hand Injuries

28




  1. Work-related Upper Limb Disorders

30




  1. Leg Injuries

32




  1. Knee Injuries

33




  1. Ankle Injuries

34




  1. Achilles Tendon

34




  1. Foot Injuries

35




  1. Toe Injuries

36










8.

Facial Injuries

37




  1. Skeletal Injuries

37




  1. Facial Disfigurement

38










9.

Scarring to other Parts of the body

40










10.

Damage to Hair

41










11.

Dermatitis

42

Introductory Foreword to the Fourth Edition of the Green Book


“Guidelines for the Assessment of General Damages in Personal Injury Cases” first appeared in 1996. Published under a green cover, the publication quickly became known as the Green Book. Since its inception it has proved to be an invaluable tool for practitioners and courts in the assessment of damages in personal injury cases coming before the courts. As Sir John MacDermott made clear in his Introduction to the First Edition in 1996 the figure suggested in the Guidelines are no more than guidelines, must always be treated as such and must be kept under regular review. The task of the Committee which I chaired in the early part of 2013 has been to subject the Guidelines as shown in the Third Edition to the periodic review called for by Sir John. This is necessary because some five years have passed since the last review which led to the publication of the Third Edition in March 2008. The current review is also timely because of the very recent increase in the jurisdiction of the County Court in personal injury cases.


Sadly, the new edition does not appear in the Green Book format to which practitioners and courts have become accustomed. The Fourth Edition appears online on the Judicial Studies Board Website though it is likely that many users will print off their own copies of the new edition for ready access in court or consultation. I rather suspect that the virtual book will retain its verdant title.
As in previous reviews we have made adjustments to the figures by reference to the Retail Price Index (“RPI”). In doing this we have borne in mind that in the Third Edition the figures took account of the fact that those Guidelines would be effective for a number of years. In the course of the present review we considered it appropriate to go back to the base figures in the Second Edition and we have considered the effect of the RPI indexation to update those figures. We have not factored forward any notional increase for the future. This means the figures which we have given are at current values. 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. The figures for damages are given in broad terms and with relatively broad ranges to take account of the infinite variety of factual situations. The assessing court can thus determine the appropriate damages at the correct figure taking account of relevant inflation in the period subsequent to the date of publication of these updated Guidelines.
In his Introduction in March 2008 Lord Justice Higgins noted that the House of Lords in Johnston v NEI and Rothwell v Chemical Insulating [2007] UKHL 39 decided that symptomless pleural plaques do not constitute actionable damage and are therefore not compensatable. The Northern Ireland Assembly, following the Scottish example, have legislated by the Damages (Asbestos-related Conditions) Act (Northern Ireland) 2011 to render symptomless pleural plaques and pleural thickening claims once again actionable in Northern Ireland. Pending any judicial determination of the correct level of damages in relation to such claims consequent upon the passing of the 2011 Act the Committee concluded that it would be premature to purport to set out the appropriate levels of awards in relation to these conditions.
Guidelines, whether they relate to the appropriate level of damages or the appropriate level of sentencing in relation to criminal offences, remain just that, no more and no less. The function of the courts in assessing damages requires a careful scrutiny of the evidence, the drawing of conclusions about the nature and extent of relevant injuries and the impact of those injuries on the life of the plaintiff. The function of the court must never be seen as a box ticking exercise. Rather it calls for an exercise of judgment in the light of all the relevant circumstances. The infinite variety of life throws up a huge array of factors and matters relevant to the assessment of fair damages in respect of individual cases. It is thus not surprising that even within individual categories of injuries there may be a wide range of appropriate awards dependent on the circumstances of the individual case. The assessment of damages remains an art and not an exact science. These Guidelines provide assistance to those called on to exercise their art. They do not provide the precise answer to any given case.
The Committee was fortunate to have the assistance of Terence Dunlop of the Judicial Studies Board who proved an able and efficient Secretary. Wendy Murray and Amanda Climie were instrumental in marshalling the paperwork and providing drafts as well as carrying out research. I am grateful to all of them for the helpful contributions which they made to the work of the Committee.
F.P. Girvan

INTRODUCTION TO FIRST EDITION

by The Right Honourable Lord Justice MacDermott

This Committee was set up by the Lord Chief Justice at the suggestion of the Judicial Studies Board for Northern Ireland. In March 1992 the first edition of the Guidelines for the Assessment of General Damages was published in England and the Board felt that it would be helpful to Practitioners and others concerned with the assessment of damages if a Northern Ireland edition were produced.

Our initial approach to our task was to question the wisdom of such a venture. The assessment of damages is not an exact science: it is not a mechanical process achieved by recourse to an analysis of allegedly comparable cases or reference to well known books such as Kemp and Kemp. A fair assessment is achieved by the Judge applying his training, experience and innate sense of fairness to the individual case which he is trying and which he will approach both sensibly and with sensitivity. There is a real argument that “guidelines” will become “norms” and that the existence of a book of this nature will depersonalise the assessment of damages. On reflection, however, we concluded for several reasons that there should be a Northern Ireland Guidelines Book.

Firstly, the level of damages in Northern Ireland is significantly higher than in England and Wales. As was pointed out by Lord Lowry in Simpson v Harland & Wolff [1988] NI 432 this variation is in large measure due to the fact that in Northern Ireland the assessment of damages was in the hands of juries until 1987.

Secondly, Practitioners when valuing cases and Judges when assessing damages have had regard to the 1987 level of damages adjusted to reflect inflation.

Thirdly, if there are no local guidelines there is a danger that the existing English Guidelines will be accepted as relevant by default. This would be both irrational and unjust.

That said, we would emphasise that this book must be used with caution and discretion. It must not be considered as a “ready-reckoner” which by reference will provide an instant valuation to every case. The suggested valuations are guidelines and will best be used as a check upon a tentative valuation reached after a careful consideration of how particular injuries affect a particular individual.

A meaningful valuation of general damages depends upon many variables such as age, sex, pre-accident health and so on. The guidelines in this book are often given as a wide bracket so that these variable features may be fitted in and they are also wide so that they may last for a number of years without being rendered unreal by the erosion of inflation.

We have followed the headings adopted in the original book with some minor variations. They are, however, somewhat rigid and do not reflect the frequent situation where injuries are multiple and their sequelae varied and at times overlapping.

Finally, we would repeat what we have already said: this book must be used cautiously and sensibly. The figures which we suggest are no more than guidelines and must always be treated as such and kept under regular review.

JOHN MACDERMOTT

25 October 1996




  1. INJURIES RESULTING IN DEATH




Fatal accident claims sometimes include an element for pain, suffering and loss of amenity for the period between injury and death. In some circumstances the awards may be high, for example those relating to asbestos exposure or misdiagnosis of cancer. Others follow extensive periods of disability before death supervenes. In such cases reference should be made to the awards for the underlying injuries or condition, suitably adjusted to reflect the fact (if it be the case) that the plaintiff knows that death is approaching, and the period of suffering.
There are cases in which a serious injury is followed by death relatively quickly. Factors which will inform the level of general damages include



  1. the nature and extent of the injury

  2. the nature of the traumatic event causing the injury

  3. the degree and duration of pain and discomfort

  4. the plaintiff’s awareness of pain and discomfort

  5. the effect and effectiveness of medication and medical treatment on the plaintiff and any side effects

  6. the length of the period of survival

  7. the plaintiff’s awareness of his impending death

  8. loss of amenity.

There are many variables rendering it difficult to give meaningful guidelines. Immediate unconsciousness after the trauma causing the injury followed by death within a matter of weeks where it is clear that the plaintiff has not suffered may attract damages in the range of £10,000 whereas a trauma such as severe burns with lung damage causing excruciating pain for a significant period would attract a high award. There will be cases falling closer to one side of the range than another. Each case will call for a careful assessment by the court of all the circumstances to arrive at the appropriate award.









  1. INJURIES INVOLVING PARALYSIS




  1. Quadriplegia

£400,000 – £575,000

Considerations affecting the level of the award:


  1. Extent of residual movement

  2. Pain

  3. Effect on other senses

  4. Depression

  5. Age and life expectancy.




  1. Paraplegia

£320,000 – £470,000

Considerations affecting the level of the award:


  1. Pain

  2. Depression

  3. Age and life expectancy.







  1. HEAD INJURIES




  1. Very Severe Brain Damage

£300,000 – £550,000

In the most severe cases the Plaintiff will be in a vegetative state; there may be recovery of eye opening and some return of sleep and waking rhythm and postural reflex movements; no evidence of meaningful response to environment. Unable to obey commands; no language functions and need for 24-hour nursing care.
Considerations affecting the level of the award:


  1. Insight – low insight or awareness will diminish

general damages.


  1. Life expectancy




  1. Extent of physical limitations.




  1. Moderately Severe Brain Damage

£200,000 – £450,000

Severe disability. Conscious, but total dependency and requiring constant care. Disabilities may be physical, e.g. limb paralysis, or cognitive, with marked impairment of intellect and personality.

Considerations affecting the level of the award:




  1. Insight - low insight or awareness will diminish

general damages.


  1. Life expectancy




  1. Extent of physical limitations




  1. Moderate Brain Damage




  1. Moderate to severe intellectual deficit, a personality change, an effect on sight, speech and senses with an epileptic risk.

£200,000 – £375,000

  1. Modest to moderate intellectual deficit, the ability to work is greatly reduced if not lost and there is a risk of epilepsy.

£110,000 – £225,000



  1. Concentration and memory are affected, the ability to work is reduced and there may be a risk of epilepsy.

£38,000 – £140,000

  1. Minor Brain Damage

£35,000 – £70,000

A good recovery will have been made. The Plaintiff can participate in normal social life and return to work but restoration of all normal functions is not implicit. There may still be persistent defects such as poor concentration and memory or disinhibition of mood which may interfere with lifestyle, leisure activity and future work prospects.
Considerations affecting the level of the award:


  1. Extent and severity of the initial injury




  1. Extent of any continuing and possibly permanent disability




  1. Extent of any personality change.




  1. Head Injury

£3,000 – £30,000

This category is a broad one. Where a head injury involves other injuries or damage (e.g. loss of taste or smell, damage to hair, injury to the jaw, scarring, psychological or psychiatric damage and personality change) the level of damages will take account of the ranges applicable to these other injuries in addition to damages for physical injury to the head (e.g. by reason of a fractured skull). The damages will range from a lower end of about £3,000 in cases where a full recovery is established within a few weeks to cases of more longstanding sequelae. In more serious cases the damages may exceed the upper level of award shown.
These are not cases of brain damage from which they must be distinguished.
Considerations affecting the level of the award:


  1. Severity of initial injury




  1. Period of recovery from acute symptoms




  1. Extent of continuing symptoms at trial




  1. Headaches




  1. Cases where there are one or two discrete epileptic episodes, or a temporary resurgence of epilepsy, but there is no risk of further recurrence beyond that applicable to the population at large.




  1. Established Epilepsy

£70,000 – £150,000

This includes both Grand mal and Petit mal.
The factors which will affect the award will be:


  1. The existence of other associated behavioural problems

  2. Whether attacks are successfully controlled by medication and the extent to which the appreciation of the quality of life may be blunted by that medication.




(g) Other Epileptic Conditions

Up to £40,000

Cases where there are one or two discrete epileptic episodes, or a temporary resurgence of epilepsy, but there is no risk of further recurrence beyond that applicable to the population at large. The level of the award within the bracket will be affected by the extent of any consequences of the attacks on, for example, education, sporting activities, working and social life, and their duration.







  1. PSYCHIATRIC DAMAGE




The factors to be taken into account in valuing claims for psychiatric damage include the following:


  1. Ability to cope with life and particularly work




  1. Effect on relationships with family etc.




  1. Extent to which treatment would be successful




  1. Future vulnerability




  1. Prognosis




  1. The extent and / or nature of any associated physical injuries




  1. Whether medical help has been sought.




  1. Psychiatric Damage Generally




  1. Severe Psychiatric Damage

In these cases the injured person will have marked problems with respect to the factors (i) to (iv) above and the prognosis will be very poor.

£70,000 – £175,000



  1. Moderately Severe Psychiatric Damage

In these cases there will be significant problems associated with factors (i) to (iv) above but the prognosis will be much more optimistic than in (a) above.

£40,000 – £100,000

  1. Moderate Psychiatric Damage

While there may have been the sort of problems associated with factors (i) to (iv) above there will have been marked improvement by trial and the prognosis will be good.

£10,000 – £40,000

  1. Minor Psychiatric Damage

The level of the award will take into consideration the length of the period of disability and the extent to which daily activities and sleep are affected.
Considerations as to the level of the award will include the length of the period of disability and the extent to which daily activities were affected.

To £10,500



  1. Post-traumatic Stress Disorder

An increasingly large number of cases deal with a specific reactive psychiatric disorder in which characteristic symptoms are displayed following a psychologically distressing event outside the range of human experience which would be markedly distressing to almost everyone. Such symptoms would affect the basic functions such as breathing, pulse rate and bowel and / or bladder control. They would also involve persistent re-living of the relevant event, difficulty in controlling temper, in concentrating and in sleeping, and exaggerated startled response.
There may be exceptional cases where consequences are so severe they equate more with the type of damage envisaged in para. A above.




  1. Severe

Such cases will involve permanent effects which prevent the injured party from working at all or at least from functioning at anything approaching the pre-trauma level. All aspects of the life of the injured person will be badly affected.

£50,000 – £100,000



  1. Moderately Severe

This category is distinct from (a) above because of the better prognosis where some recovery with professional help is anticipated. However, the effects are still likely to cause significant disability for the foreseeable future.

£35,000 – £70,000



  1. Moderate

In these cases the injured person will have largely recovered and any continuing effects will not be grossly disabling.

£10,000 – £40,000



  1. Minor

In these cases a virtually full recovery will have been made within one to two years and only minor effects will persist over any longer period.

£3,500 – £10,000


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