Spare a thought

Every working day, in hushed courtrooms up and down the country, judges are required to assess the general damages for pain, suffering and loss of amenity which a claimant should receive for some personal injury they have suffered. Most of these cases are of modest value, and are heard by district judges.

In cases arising out of road traffic accidents, where the value of the claim is more than £1,000 but does not exceed £10,000, and where liability is admitted, a new process has been in place since 30 April 2010. It is expected that, under this process, most claims will be agreed between the parties, but, if agreement on the amount of damages cannot be reached, stage three of the process provides for the matter to come before a district judge for determination. It is anticipated that many of these cases will be dealt with by the judge on paper, on the basis of written evidence, including expert medical reports.

So how will this work? I suspect it will mirror the way that such evidence is now presented at trials and disposal hearings.

District judges will be only too familiar with being inundated by counsel on both sides with case reports which are said to provide 'valuable guidance' on the sort of figure to be awarded in the case before the court. Invariably these case reports are carefully selected to support the arguments of the counsel presenting them. They are usually decisions of district judges or deputy district judges in county courts all over the country. Let me tell you, dear reader, they are of very little use.

When assessing damages, the starting point for the judge will be the Judicial Studies Board guidelines, now in their ninth edition.

I accept that, for many injuries, the guidelines provide a broad bracket. The judge's job in an individual case is to look at the facts of the case, look at the injuries which the claimant says he has suffered, and look particularly at the medical evidence provided. It is not an exact science, and different judges may come up with slightly different figures.

Decisions of other judges of the same rank are not binding. A decision must be made on the particular facts of the particular case being decided. Knowing what other judges have awarded in other cases does not help, unless of course the claim is a very large one, where decisions of the higher courts may well provide useful guidance.

Stage 3 of the new claims process for RTA claims is contained in a new Practice Direction to CPR part 8. In 8BPD 6 it sets out the evidence to be filed by the claimant with the claim form at the part three stage. This includes final offers from both sides, contained in a sealed envelope. Since the decision is likely to be made on paper unless either party requests a hearing, the opportunity to make submissions is very limited.

I would suggest that it is not likely to be helpful to swamp district judges with a plethora of previous awards. Focusing on the JSB guidelines, and pointing out where within a bracket the particular case falls, and why, is much more helpful.

I should make clear that claims on behalf of children still require court approval, and the new Practice Direction makes specific provision for how such claims should be dealt with.

Medical history

While mentioning claims brought on behalf of injured children, let me move into another area of concern among district judges when asked to approve settlements for children. Time and time again, the judge, when reading the file, is confronted with a medical report, which may be anything up to two years old.

The report suggests that the doctor is confident that the effects of the injury will have been resolved completely by three or six or 12 months after the date of the report. There is usually an opinion from counsel which, based on the medical report, advises that the figure being offered by the defendants is an appropriate one, and that the court can safely pprove the settlement.

The case is called on, the defendants having written to say theydo not intend to appear as all matters are agreed. In comes a solicitor or counsel for the claimant, the litigation friend, and the child.The judge has read the medical report, and so asks the child, or the litigation friend if the child is very small, whether they are still getting pain in their neck/back/shoulder, or any other injured part of their anatomy. You would be amazed how often the answer is 'yes, it still hurts sometimes.' Further enquiry of the litigation friend may confirm this.

The problem for the judge is that, on the face of it, the expected recovery has not taken place within the timescale expected by the doctor. Very often, nobody has actually asked the child or the litigation friend whether problems are still occurring. The litigation friend has probably never met the solicitor.

The judge's job is to approve the settlement only if satisfied that the proposed settlement figure is an appropriate one. If the anticipated recovery has not taken place, the judge has little alternative but to adjourn the hearing and direct further enquiries to be made, with, if necessary, a further medical report. Significant unnecessary costs have been incurred, mainly because the claimant's solicitor simply failed to ask a simplequestion. I would suggest that a little thought given to such matters may save a great deal oftime and cost.