“THE JUDICIAL COLLEGE GUIDELINES NEEDS TO BE INCREASED BY, IN MY JUDGEMENT, ABOUT 12%.”
BLAIR -v- JABER [2023] EW MISC 3 (CC)
In a welcome judgement, a Recorder sitting in the County Court determined that inflation should be taken into account when looking at the Judicial College Guidelines and increased damages by 12% accordingly.
LIABILITY
The Claimants Mr & Mrs Blair were passengers in a taxi that was involved in an accident at a roundabout when it was allegedly forced to brake suddenly. Mr Blair sustained a broken clavicle while Mrs Blair suffered pain and a laceration to her left shin which left a scar. The Claimants accepted that they were not wearing seatbelts.
At trial, Mr Jaber denied braking suddenly or stating that he had been forced to do so due to another driver cutting him off. However, he was unable to explain how his passengers had ended up on the floor of his taxi. Consequently, the Judge drew his judgement from the overall probabilities noting that:
“The central difficulty with the defendant’s case is that it provides no plausible explanation as to how the claimants came to sustain their injuries. People do not end up on the floor of taxis with a broken clavicle and a bleeding shin unless something has gone wrong.”
The Judge preferred the Claimants evidence finding their explanation plausible and noting the demeanour of the parties. Specifically, the Claimants had been willing to concede things in cross-examination while the Defendant had been unable to answer what should be straightforward questions.
CONTRIBUTORY NEGLIGENCE
Both parties agreed that as a seatbelt had not been worn by either claimant then the principles in Froom v. Butcher [1976] 1 QB 286 should apply i.e.
“The reduction in damages for failure to wear a seatbelt should be 25% for those injuries which would have been prevented by wearing a belt, and 15% for those injuries which would have been less severe. There should be no reduction if the injuries would have been the same if a belt had been worn.”
On the basis of the medical evidence, the Judge reduced the General Damages by 25%.
INTEREST
After assessing the Special Damages, the Judge turned to the exact assessment of the General Damages and stated at paragraphs 17 & 18:
“I turn then to general damages. I first make a general point about the Judicial College Guidelines. The current edition was published on 11th April 2022, nearly a year. The figures in this latest edition were probably finalised earlier. Since then, we have had inflation such as not been seen since the 1970S. The Office of National Statistics figure for January 2023 released 15th February 2023 showed the Retail Price Index at 13.4% per annum. The source for that is www.ons.gov.uk/economy/inflationandpriceindices, accessed on 8th March 2023.
The Judicial College Guidelines, unlike the Northern Irish Green Book, do not take future inflation into account. I need to consider whether the figures in the guidelines should be increased to take the unexpected and massive increase in inflation into account. Ms Dervin submitted that I should not. That is, she submitted, a matter for the Judicial College to consider. I disagree. The Judicial College Guidelines are just that – guidelines. If there is a change in circumstances between April 2022 and today, that is a matter to take into account when assessing damages. The very substantial drop in the value of money which has taken place since April 2022 is just such a circumstance. Accordingly, the Judicial College figures needs to be increased by, in my judgment, about 12%.
ANALYSIS
The rulings of the County Courts are not binding. However, they can be persuasive in similar cases and practitioners in personal injury cases should be aware of the Recorder's logic.
It should also be noted that on the day of the trial, a hard copy of the Judicial College Guidelines was not available which led to an error in the court's assessment of inflation. A note on the judgement makes it apparent that from the foreword of Lambert J in the JCG, the figures for general damages in the 16th Edition are based on prices as at September 2021. The RPI was 308.6 in September 2021 and 367.2 in March 2023: (www.ons.gov.uk/economy/inflationandpriceindices/timeseries/chaw/mm23). This is an increase of 19%.
Finally, the Judge's reference to the parties demeanor should also be noted. It is clear that the Claimants presented in an open and forthcoming manner which found favor with the court. By contrast, the Defendant appears to have adopted a guarded and defensive posture being 'unwilling to concede anything in cross-examination.' This is polite 'judge talk' for 'your story clearly does not add up, do you think I am an idiot?' In those circumstances, it is not uncommon for members of judiciary to utilise their knowledge and discretions to reward parties with a more favorable 'demeanor'.
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