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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.
|
Old
|
New
|
Old
|
New
|
Old
|
New
|
Old
|
New
|
|
0-10000
|
Same
|
46,000
|
49,942
|
82,000
|
96,057
|
118,000
|
148,343
|
|
11,000
|
11,026
|
47,000
|
51,140
|
|
97,426
|
119,000
|
149,883
|
|
12,000
|
12,057
|
48,000
|
52,342
|
84,000
|
98,800
|
120,000
|
151,428
|
|
13,000
|
13,092
|
49,000
|
53,549
|
85,000
|
100,179
|
121,000
|
152,979
|
|
14,000
|
14,133
|
50,000
|
54,761
|
86,000
|
101,562
|
122,000
|
154,533
|
|
15,000
|
15,178
|
51,000
|
55,978
|
87,000
|
102,945
|
123,000
|
156,093
|
|
16,000
|
16,228
|
52,000
|
57,200
|
88,000
|
104,343
|
124,000
|
157,657
|
|
17,000
|
17,283
|
53,000
|
58,426
|
89,000
|
105,740
|
125,000
|
159,226
|
|
18,000
|
18,342
|
54,000
|
59,657
|
90,000
|
107,142
|
126,000
|
160,800
|
|
19,000
|
19,407
|
55,000
|
60,892
|
91,000
|
108,549
|
127,000
|
162,379
|
|
20,000
|
20,476
|
56,000
|
62,133
|
92,000
|
109,961
|
128,000
|
163,962
|
|
21,000
|
21,549
|
57,000
|
63,378
|
93,000
|
111,378
|
129,000
|
165,549
|
|
22,000
|
22,628
|
58,000
|
64,628
|
94,000
|
112,800
|
130,000
|
167,143
|
|
23,000
|
23,711
|
59,000
|
65,883
|
95,000
|
114,226
|
131,000
|
168,740
|
|
24,000
|
24,799
|
60,000
|
67,142
|
96,000
|
115,657
|
132,000
|
170,343
|
|
25,000
|
25,892
|
61,000
|
68,407
|
97,000
|
117,092
|
133,000
|
171,950
|
|
26,000
|
26,990
|
62,000
|
69,676
|
98,000
|
118,533
|
134,000
|
173,562
|
|
27,000
|
28,092
|
63,000
|
70,949
|
99,000
|
119,978
|
135,000
|
175,179
|
|
28,000
|
29,199
|
64,000
|
72,228
|
100,000
|
121,428
|
136,000
|
176,800
|
|
29,000
|
30,311
|
65,000
|
73,511
|
101,000
|
122,883
|
137,000
|
178,426
|
|
30,000
|
31,428
|
66,000
|
74,799
|
102,000
|
124,342
|
138,000
|
180,057
|
|
31,000
|
32,550
|
67,000
|
76,092
|
103,000
|
125,807
|
139,000
|
181,692
|
|
32,000
|
33,676
|
68,000
|
77,390
|
104,000
|
127,276
|
140,000
|
183,333
|
|
33,000
|
34,807
|
69,000
|
78,692
|
105,000
|
128,745
|
141,000
|
184,978
|
|
34,000
|
35,942
|
70,000
|
79,999
|
106,000
|
139,229
|
142,000
|
186,628
|
|
35,000
|
37,083
|
71,000
|
81,311
|
107,000
|
131,712
|
143,000
|
188,283
|
|
36,000
|
38,228
|
72,000
|
82,626
|
108,000
|
133,200
|
144,000
|
189,942
|
|
37,000
|
39,378
|
73,000
|
83,950
|
109,000
|
134,693
|
145,000
|
191,607
|
|
38,000
|
40,533
|
74,000
|
85,276
|
110,000
|
136,190
|
146,000
|
193,276
|
|
39,000
|
41,692
|
75,000
|
86,607
|
111,000
|
137,693
|
147,000
|
194,949
|
|
40,000
|
42,857
|
76,000
|
87,942
|
112,000
|
139,200
|
148,000
|
196,628
|
|
41,000
|
44,026
|
77,000
|
89,283
|
113,000
|
140,712
|
149,000
|
198,311
|
|
42,000
|
45,199
|
78,000
|
90,629
|
114,000
|
142,229
|
150,000
|
200,000
|
|
43,000
|
46,378
|
79,000
|
91,979
|
115,000
|
143,750
|
> 150 k
|
+1/3
|
|
44,000
|
47,561
|
80,000
|
93,333
|
116,000
|
142,276
|
.
|
.
|
|
45,000
|
48,749
|
81,000
|
94,693
|
117,000
|
146,807
|
.
|
.
|

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.

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