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Five years after the publication of the last edition of the Green Book, the new sixth edition is out. This comes amidst a backdrop of increasing judicial awards over the last 18 months.
Whilst there was no doubt that the new edition would bring about an increase in general damages; until now the extent of the expected increases have been mere speculation.
This is a welcome development for insurers and compensators, as the guidelines restore a degree of certainty to the valuation of claims and should, hopefully, temper the expectations of some of the more ‘optimistic’ plaintiff practitioners.
The new edition also brings structural and categorical changes. In some cases rationalising categories where there were a multitude of overlapping sub-categories, and in others, sub-categories have been added to give much needed clarity.
As the sixth edition is ‘hot off the press’, it remains to be seen how individual judges will interpret and apply the new guidelines. However, in this article, we highlight the changes we think will be most relevant to our clients.
‘Whiplash’ injuries – neck/back/shoulders
The new edition provides clarity around recovery periods. In modest neck and back injuries, the previous edition referred to recovery periods in general terms i.e. “a few days, a few weeks or a few months” or “several months”. The new edition removes this ambiguity and provides more precise timeframes, for example “a full recovery within 6 months”, “within a period of 6–12 months”, or “within a period of 12-24 months”.
For minor neck injuries, the level of awards have increased by at least 30%. However, some increases are as high as 66% compared to the 2019 edition. A full recovery within six months will now attract an award of up to £5,000 as opposed to £3,000. An exacerbation injury with a full recovery within a few years can now attract an award of up to £40,000 as opposed to £30,000.
For minor back injuries, the level of awards has increased by around 20 to 25%. A minor back injury with some exacerbation and a full recovery between two to five years will attract an award of up to £37,500 as opposed to £30,000 which again falls into the High Court range.
The brackets for shoulder injuries have remained the same, however awards have increased by at least 25%. Minor injuries can attract awards of up to £17,500 compared to £14,000. A frozen shoulder and more moderate shoulder injuries can attract awards up to £40,000 as opposed to £30,000.
The increases in these categories will lead to an increasing volume of cases falling within the High Court’s remit, quite a few of which would traditionally have fallen firmly within the County Court’s jurisdiction.
Psychiatric injuries
Damages for psychiatric injuries have been on the rise since the case of Leonard v Theedom [2020] in which a nine-month adjustment disorder received a £10,000 award as part of the judgment.
The new edition has significantly increased damages in this area. For psychiatric damages generally, the following categories will now attract higher awards:
- Severe Psychiatric Damage (£100,000-£250,000) – 19% increase.
- Moderately Severe Psychiatric Damage (£60,000-£150,000) – 20% increase.
- Moderate Psychiatric Damage (£15,000-£60,000) – 23% increase.
- Minor Psychiatric Damage (up to £20,000) – 33% increase.
Post traumatic stress disorder (PTSD) is considered separately and severe injuries in this category have drastically increased in value, as follows:
- Severe (£100,000-£250,000) - 108% increase.
- Moderately Severe (60,000-£150,000) - 58% increase.
- Moderate (£15,000-£60,000) - 24% increase.
- Minor up to (£20,000) - 54% increase.
Recently the court awarded £12,500 for a 12-month adjustment disorder and £10,000 for a six-month adjustment disorder. Whilst there is always a degree of variation depending on the judge, broadly speaking, the courts seem to be awarding approximately £1,000 per month for adjustment disorders which would be in keeping with the updated guidance.
Hand injuries
These injuries are common features of employers’ liability and public liability claims, particularly in matters involving use of machinery/manual handling.
The new edition combines both total and partial loss of index finger into a standalone category, which attracts damages of £40,000 to £62,500. Significant laceration injuries with permanent functional impairment of a moderate level may be an example of what may attract damages in this bracket.
A new bracket, ‘Serious fracture or injury to Index Finger or to other finger(s)’, attracts up to £40,000 and replaces the previous ‘Fracture of Index Finger’ category which was up to £17,000 (less than half of the new range). Stiffness, deformity and loss of grip/dexterity are included as factors under this bracket. A crush injury would arguably fit within this bracket, depending on severity.
Another new bracket, ‘Minor Finger and Thumb injuries’, attracts awards of up to £10,000 which will include fractures which have recovered within six months, minor scarring, tenderness and reaction to cold.
We would expect minor injuries arising from slips, trips, falls and road traffic accidents to fall under this bracket. Any injuries of a similar nature that are not recovered by six months may come into the general catch-all bracket for ‘Minor Hand Injuries’ which attracts up to £22,000.
Scarring
Over the past two years the awards handed down for scarring cases, particularly in the High Court, have increased at a more rapid pace than other injuries.
The most notable change is the removal of separate categories based on gender. The guidance now states that any distinction based on gender should not be of any particular significance. How this will operate in practice remains to be seen, but it certainly streamlines the guidance.
The majority of claims will fall into brackets (iii) or (iv) for ‘significant scarring’ and ‘some scarring but not of great significance’. The former category now stretches from £45,000 to £110,000, increased from £36,000 to £90,000 for females and up to £40,000’ for males under the previous edition. The latter category now provides for awards ‘up to £45,000’, increased from ‘up to £36,000’ for females. There was no direct comparator for male plaintiffs under the previous edition.
The median increase to damages in this category is approximately 25%, which is not as substantial as the uplifts in other categories. In reality, it simply brings the guidance up to date with the current awards being handed down by the courts.
Head injuries
The guidance on serious head injury and established epilepsy remains largely unchanged, although the brackets have generally followed the expected increase of 20 to 25%.
The guidance on minor to moderate head injuries now includes specific guidance on Post-Concussional Syndrome (PCS). This raises the possibility that PCS may become a more common feature of cases involving impact-type injuries.
For example, a road traffic accident claim where a plaintiff sustains soft tissue injuries and complains of symptoms such as dizziness and headaches. Given that the bracket attracts £4,500 to £47,000, courts may be inclined to award a figure within the mid-range where there is a proven case of PCS arising out of an initial blow injury to the head (subject to its severity and overall prognosis).
Hearing loss/tinnitus
The guidance for hearing loss and tinnitus has been given a much needed re-working. Under the previous edition, there was no separation between hearing loss and tinnitus. The new edition separates the two injuries, as they can and frequently do exist in isolation of one another.
There has been no change to the awards for mild hearing loss and tinnitus, although now in separate categories, both allow for awards of ‘up to £20,000’. However, there has been an increase in the guidance for moderate hearing loss, which now provides for awards from £20,000 to £60,000, increased from £20,000 to £42,000 for combined hearing loss and tinnitus in the previous edition. Moderate tinnitus remains unaffected, albeit marginally lower at the upper end of the guidance as it now provides for awards from £20,000 to £40,000.
The largest increase is for severe hearing loss which now spans from £60,000 to £200,000. This is a substantial jump from the previous category for ‘Severe Tinnitus’ which included hearing loss and where the guideline awards were £40,000 to £80,000.
However, the severe categories are only likely to arise occasionally. The majority of claims will arise from the mild and moderate categories. Despite hearing loss and tinnitus now appearing as separate injuries, the guidance is clear that allowances should be made to avoid over-compensation.
Comment
As with all previous editions of the Green Book, it should be noted that the figures are for guidance only and the Committee have been clear that they are not to be applied rigidly. In each case, it is for the judge to make a fair assessment in each case.
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