What do you do if you’re sailing and your mast breaks?
In the 2013 Atlantic Rally for Cruisers, in which small sailing vessels travel from Gran Canaria to the Carribbean, that happened to one of the participating boats.
Pollux, from France, with her 2-man crew was only 140 miles from her final destination of St. Lucia, when she was dismasted in a heavy squall.
The crew did not panic.
Applying the concept of ‘jury-rigging’ – a term used to describe the actions of makeshift running repairs made with only the tools and materials on board – they rigged a windsurfing sail as a temporary replacement on their remaining “half mast”.
It helped that the final stretch was downwind and, in the end, they lost remarkably little time because of the mishap. A few adaptations and they still achieved the desired result – getting “home”. But without the enforced adaptations they would not have made it to their destination.
In valuing personal injury claims in Scotland, it can sometimes feel like you have to jury-rig the standard Guidelines.
Just so’s you can get the Guidelines moulded into the right shape for you to value the particular injuries.
In this article, we’ll look at 3 ways “running repairs” are needed in the context of valuation of claims in Scotland.
First of all, we will see how, in some cases, you have to tweak the valuations which seem to be applicable on the face of the Guidelines. Secondly, how you have to watch out for situations where the Guidelines say they do not apply but they do in fact apply in Scotland. And, finally, how there are situations where you might expect the Guidelines to provide valuation guidance but they don’t at all: you have to look elsewhere.
In the first place, we need to make sure we all understand what we’re on about here. So, here is some background information you need – about how valuation of personal injury claims works generally.
What do we mean by valuation of personal injury claims?
Personal injury claims are made up of several bits: e.g. pain and suffering compensation, wage loss, services. The Judicial College (“JC”) Guidelines are used by lawyers, insurers and judges to value the injury part of personal injury claims.
The task of compensating for pain and suffering is a common one. But it’s made difficult because no award of money can actually compensate a person in any real sense. Though no two cases are ever going to be exactly comparable, there needs to be as much consistency in awards as possible if there’s to be justice.
The JC Guidelines provide at least a starting point for valuing most injuries.
They classify particular injury types by focusing on the nature of the damage suffered and the length of time symptoms have lasted.
You can get orientated in the section which applies (e.g. elbow injuries) by whether, say, it’s a severe, moderate or minor injury.
You mostly get a “top of range” and “bottom of range” value for each section.
An example of a range might be £3,370 to £5,790, £7,380 to £14,310, or £22,340 to £37,070.
As you can, some ranges are small and others not so small.
If both sides can agree which “bracket” applies you might be close to agreement – or not (£22,340 to £37,070 still gives plenty room to disagree).
The JC Guidelines were first published in 1992. They get reviewed every 2 years.
The latest Guidelines – the 16th edition – were published on 11 April 2022.
They’re designed for use in England and Wales. They still get used in Scotland. How do they work in Scotland?
1. The problem that the JC Guidelines figures might have to be adjusted for Scotland.
In practice, you might need to apply something like a 9.1% reduction to the figures for England and Wales.
This is because, in England and Wales, a few years ago, the law changed to make it more difficult for claimants to recover their legal costs from the opponent. As a pay-off, compensation levels were increased in England and Wales by 10%.
The JC Guidelines had in previous editions a column without the 10% uplift (which you could use in Scotland) and one with the 10% uplift (for England and Wales). The 16th edition does away with the column without the 10% uplift. In theory, Scottish practitioners should do their own calculation to reduce sums in the JC Guidelines. Defaulting to the higher awards, in theory – though they are the only figures you will actually see in the Guidelines – is not correct in Scotland.
An example is given in the latest Guidelines, explaining that the figures (uplifted by 10% “incorrectly” for other jurisdictions such as Scotland) can easily be converted back to a pre-uplift figure by multiplying by a factor of 0.909. In this way, an uplifted figure of £2,000 would convert down to a “Scottish” figure of £1,818.
2. The problem that the context in which an injury was suffered might make it appear that the JC Guidelines do not apply but that is a red herring in Scotland.
Recent changes to the law in England and Wales mean that whiplash injuries from some road traffic accidents are compensated on a lower scale than appears in the JC Guidelines.
As a broad reference, a £1,500 injury under the JC Guidelines may be worth more like £250 under the new tariff – a legal reform intended to result in a reduction in motor insurance premiums.
But this does not apply in Scotland and the JC Guidelines are relevant whether you got your whiplash injury in a road traffic accident or any other type of accident.
3. The problem that the JC Guidelines don’t cover some “personal injury” damages at all.
Fatal accident claims sometimes include an element for pain and suffering for the period between injury and death. This is a claim for the deceased themselves which then becomes an asset forming part of their death estate.
The fact of their death, however, may give rise to possible compensation claims by relatives of the deceased for “loss of society” and “loss of (financial) support”. In Scotland, such claims can be valuable (at least, in comparison to England and Wales). But you won’t find the valuation of such claims covered in the JC Guidelines and it really is an area of law where it is a good idea to obtain specialist advice from a solicitor.
It’s hard to imagine that there will ever be consolidating law put in place so that everything you need to know about valuing personal injury claims will be available in one place.
In some ways, it is unfortunate that the Judicial College Guidelines continue to leave so many things vague. But they were never intended to be applied directly in Scotland and it’s just a practice that has grown up over time. So it’s not fair to criticise and regular “running repairs” will be required, as before, to make everything fit together for Scotland.
We hope it’s been helpful to get a flavour of the different issues which can come up, whether it’s that
- the figures in the Guidelines themselves need some Scottish arithmetic applied, or
- apparent disapplication of the Guidelines is not actually relevant in a Scottish case, or
- the Guidelines “don’t cover this type of thing at all”, though you might have expected they would.
How we can help
We hope this was a useful article – looking at how guidelines can help (to a greater or lesser extent) in valuing personal injury compensation for “pain and suffering”.
If you have any questions arising from this article, please do get in touch with us.
Should you need advice on a possible personal injury claim and you think a free case assessment would be helpful to you – and we are local solicitors from your point of view – go ahead and send us a Free Online Enquiry.
The sooner that someone gets going on the process of investigating and reviewing your claim, the better for you.
The article HERE should help, if you want to understand more about what will actually happen if you get in touch with us about making a personal injury compensation claim.
Our aim is to help people in Moray to claim fair and full compensation for personal injury in such a way that it costs you nothing, whether your claim succeeds or not. We are specialist, accredited solicitors – at Grigor & Young LLP, Elgin.