Changing the way general damages are assessed June 17, 2009
Posted by Richard Moorhead in : Costs, Jackson Review, Uncategorized , trackbackChanging damages assessment
Lord Justice Jackson’s report suggests that a move towards more tariff and points-based systems of general damages be considered. This is not only designed to reduce cost, but to improve consistency within the system and to reduce problems of undersettlement. Chapter 27 discusses systems in other jurisdictions, which Jackson notes appear to be more predictable (para. 5.1, page 239). Chapter 28 discusses the problems with JSB guidelines and the merits and limits of computer-based systems as operated by defendants (para. 3.1, page 242 onwards). Insurers have for some time used the controversial Colossus system to assist in the negotiation of damages claims and have suggested something similar be developed to assist general damage calculations. PICAS is also discussed (para. 5.1, page 244 onwards). Jackson seems at least half persuaded of the merits of the insurers ideas in this regard. He summarises their thoughts here.
“A committee chaired by a senior judge and then adopted by the courts. The computer would then generate guideline figures for each case. Obviously, adjustments could be made to the guideline figures according to the circumstances of each case. The advantages of such a system would be:
- It would be simpler to use than the present tools (JSB guidelines, reported decisions and Kemp) and would make the level of general damages far easier to predict.
- Lawyers and litigants would all have access to the same computer programme.
- The system could be made publicly available through the internet and thus claimants could readily ascertain their likely level of damages.
Overseas experience. Insurers state that a number of overseas jurisdictions have “points” systems or similar systems which make the assessment of damages for personal injuries more precise; thus it is easier in those urisdictions to predict what damages will be awarded by the courts in any given case.”
Jackson preliminary, para. 8.9 and 8.1o, p. 109
It is clear that doctors, not lawyers, might be asked to put in the necessary information into the system leading to the assessment of general damage (para. 8.10, para 5.8 page 245)
The main drawback of current systems is the perception (and perhaps reality) that such systems are calibrated for, and run for the benefit to, the interests of the defendants. Jackson contemplates overcoming this by ensuring judges approve the point-scoring calibration of such systems and sees a specific role for the system in overcoming some of the risk of under-settlement (para. 6.3, page 246).
Comments»
no comments yet - be the first?