Simmons v Castle

Hearing date: 26 July 2012

This is the judgment of the Court arising out of an application to approve a settlement of an appeal brought in a personal injury action.

Because the terms of settlement involve the appeal being allowed, albeit through an agreed variation in the order made by the court below, it requires the consent of the Court of Appeal. Normally, such consent is given in writing by a single Lord Justice, without the need for a hearing. However, the requirement for such consent on this appeal provides an appropriate opportunity for this court to announce an increase in general damages in most tort actions with effect from 1 April 2013.

The present appeal arises out an award of damages made by Mr Recorder Burns in the Derby County Court in favour of Christopher Simmons who suffered personal injuries as a result of being knocked off his motorcycle by a motor car driven by Derek Castle, who admitted negligence. The Recorder assessed general damages at £20, 000 and special damages of £2,730.37, each figure carrying an award of interest, and resulting in a total award of £24,712.72. The Recorder declined to make awards (i) of provisional damages, (ii) for handicap on the labour market, or (iii) to compensate Mr Simmons for the risk of future pecuniary loss caused by the risk of medical deterioration.

Following the grant of permission to appeal to appeal by Patten LJ to Mr Simmons, Mr Castle made a Part 36 offer, which Mr Simmons decided to accept. The terms of settlement maintain the award totalling £24,712.72, but go on to provide that, if Mr Simmons develops 'fulminant septicaemia resulting in long term disabling illness or death, which causes … significant ongoing recoverable loss of earnings', he 'should be entitled to apply for further damages …'.

There is no reason not to approve this settlement. While it may not be necessary to say so (as Mr Simmons is an adult of full capacity), it appears to us that £20,000 seems a correct figure for general damages, and the figure agreed for special damages also appears to be right.

We turn, then, to the future approach to the measure of general damages in tort actions.

On 1 April next year, the reforms to civil costs contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will come into force. Part 2 of the Act provides for the implementation of recommendations 7, 9, 14 and 94 of the Final Report on Civil Litigation Costs by Sir Rupert Jackson. These recommendations form part of a coherent package of reforms, one element of which is that general damages should rise by 10%: see recommendations 10 and 65 (i). The Lord Chief Justice, with the unanimous support of the Judicial Executive Board, has previously announced the judiciary's support for this package of reforms, as has the Government following a consultation exercise. The 2012 Act has been introduced by the executive and enacted by the legislature on the basis that the reforms are a coherent package, and that the judiciary will give effect to the 10% increase in damages.

As Lord Diplock said in Wright v British Railways Board [1983] 2 AC 773 (' Wright'), 785A-B, the Court of Appeal 'with its caseload of appeals in personal injury actions' is 'generally speaking, the tribunal best qualified to set guidelines for judges trying such actions, particularly as respects non-economic loss'. Lord Woolf MR said when giving the judgment of the court in Heil v Rankin [2000] EWCA Civ 84, [2001] QB 272 (' Heil'), para 5, 'it is clear that Lord Diplock also intended the Court of Appeal to have the responsibility for keeping guidelines up to date'.

As Lord Woolf MR went on to explain, such an exercise should be carried out by reference to the 'existing legal principles as to the assessment' of damages, which, in the case of general damages, involves 'the difficult and artificial task of converting into monetary damages the physical injury, deprivation and pain and to give judgment for what it considers to be a reasonable sum– see Heil, paras 20 and 23, quoting Lord Pearce in H West & Sons Ltd v Shephard [1964] AC 326, 364. Much the same point was made by Lord Diplock, when he referred to 'the inescapably artificial and conventional nature of the assessment of damages for non-economic loss' – Wright, 784F.

As Lord Woolf MR also said in Heil, para 25, consistency of approach in the assessment of damages, whether special or general, is 'important', partly because it is a fundamental aspect of justice, and partly because it assists settlement (and see per Lord Diplock in Wright, 784G-H). Hence the valuable Guidelines for the Assessment of General Damages for Personal Injury published by the Judicial College (formerly Judicial Studies Board), which are produced approximately every two years, and which...