17.4   Damages for Pain, Suffering and Loss of Amenity

17.4.1 Range of Awards continued

20.     Another useful table has been produced by Simon Levene of 199 Strand which is calculated on the assumptions that (a) the highest level of award on 23rd March was £150,000 and is to be uplifted by one-third (b) there is no increase in awards that were worth up to £10,000 (though one should always re-calculate an old award to find its value as at 23rd March) and that the increase of 0% at £10,000 rises in a straight line to 331Ú3% at £150,000. Having done that calculation it will, in future, be necessary to update again for changes in the value of money as calculated by reference to the RPI. Again, I reproduce the table in full.

17.4.2 The JSB Guidelines

21.     With barely a hint of 'hauteur' Staughton LJ in Arafa v Potter in July 1994 said this of the Guidelines:

'We have been referred to the Guidelines of the Judicial Studies Board. They are not in themselves law; they form a slim and handy volume which anyone can slip into their [sic] briefcase on the way to the County Court or travelling on Circuit. But the law is to be found elsewhere in rather greater bulk. In this Court we ought to look at the sources rather than the summary produced by the Judicial Studies Board.'

22.     Some might think it fair to comment that the value of the JSB Guidelines is that they are deduced from precisely those sources and draw upon the considerable experience of practitioners who have day-to-day familiarity with this particular field. Indeed, the Guidelines received unequivocally enthusiastic support from Lord Woolf MR in his foreword to the third edition and in his judgment in Heil. Even Sir Christopher (as he now is) has rather grudgingly recanted in Reed v Sunderland HA (Times 16th October 1998). Others say that such guidelines would have greater force and value if they had been the product of wider consultation throughout the Judiciary and/or the profession. Nevertheless, the consensus remains that they do constitute a valuable and broadly accurate guide to what is typically awarded. As explained above, the 5th Edition was produced following the Court of Appeal's ruling.

23.     Self-evidently, the difficulty about trailing through Kemp, Butterworth or Current Law in order to find what Staughton LJ was pleased to call 'the law' is that, with the possible exception of reports of decisions of the Court of Appeal, almost every case finds its way into the books for a particular reason: a Claimant's lawyer may be particularly pleased with a high award or a Defendant with a low one. A report may be submitted not because the case was inherently interesting but because someone wants to see his name in print or because an enthusiastic pupil thinks that it is an easy way to earn £40. Often, the Notes of the Judgement are selective and not sufficiently comprehensive. Furthermore, all three books are hopelessly overloaded with a vast quantity of outdated cases and also with reports from Judges who could not possibly be regarded as particularly authoritative in a particular field.

24.     My advice, therefore, is that when one has to consider a case report, the only ones that really matter are from the Court of Appeal and even they must be read in the context of the particular Appeal. What one should be looking to see is whether the particular case reported can reasonably be regarded as an award for an average or typical (as opposed to exceptional) case. As was recognised in Reed, Judges should use both the JSB Guidelines and the cases and, of course, their own judgement and experience in the context of the facts of the particular case. Remember, however, that there may be instances where the JSB bracket is demonstrably too low, as was the general consensus (for example) on the recommended awards for Vibration White Finger (see Armstrong v British Coal - Unreported CA July 1998). There will be other cases in which the Guidelines themselves are not apt, such as the awards for child abuse resulting in psychiatric injury - see Coxon v Flintshire CC Times LR 13/3/01.

25.     The first stage of assessment should be to decide upon the appropriate bracket: remember that the bracket may have been set two or three years before the case is tried. In that case, it will be appropriate to uprate the bracket to take account of inflation. Despite arguments to the contrary in Heil, the Court there made it clear that it preferred to continue to use RPI as the most reliable guide to the present value of money rather than (for example) wage rate inflation. Having carried out this exercise, it is always prudent to compare the bracket that you have provisionally chosen with the level of award for more and less serious injuries than those with which you are dealing.

26.     Once the bracket is established, the individual factors of the particular case ought to enable you to decide the appropriate level within that bracket. Remember, however, that one has to choose an overall figure which is a fair reflection of the Claimant's injuries and consequential disability. Where a Claimant has suffered a variety of separate injuries, the simple process of adding up awards that may seem appropriate for the various components is likely to produce a total which is disproportionately high - see e.g. Clarke v South Yorkshire Transport Ltd [1998] PIQR Q104. Subject to those comments, I suggest consideration of the following factors.