Simmons v Castle

Negligence – Damages – Settlement – Parties agreeing terms to settle personal injury damages – Variation in order made by court below requiring consent of Court of Appeal – Appeal Court announcing future increase in general damages for most tortious acts – Appeal dismissed This appeal arose out of an award of damages in the county court in favour of the appellant who had suffered personal injuries as a result of being knocked off his motor cycle by a car driven by the respondent who admitted negligence. Following the grant of permission to appeal, the respondent made a Part 36 offer which the appellant accepted.Because the terms of the settlement involved the appeal being allowed, albeit through an agreed variation in the order made by the court below, it required the consent of the Court of Appeal. Normally such consent was given in writing by a single Lord Justice. However, the requirement for consent on this appeal provided an appropriate opportunity for the court to announce an increase in general damages in most tort actions with effect from 1 April 2013. Held: The appeal was dismissed. The Court of Appeal had not merely the power, but a positive duty, to monitor and where appropriate to alter the guideline rates for general damages in personal injury actions. There was no good reason why the increase in general damages should not apply equally to all tort cases.This was an unusual basis on which to rest a judgment or to adjust guidelines. However the recommendation to adjust the level of damages arose from a report prepared by a judge, which was initiated by the judiciary and which contained policy recommendations, which was itself unusual and could only be justified in relation to a topic as closely concerned with the administration of, and access to, justice, as legal costs. With the exception of the 10% increase in general damages, the great bulk of those policy recommendations had been adopted in full by the legislature in an Act sponsored by the executive, on the clear understanding that the judges would implement the 10% increase. It would therefore be little short of a breach of faith for the judiciary not to give effect to the 10% increase in damages recommended by the report. Although the court was laying down a principle which would not take effect immediately, but only in some eight months time, there were many cases proceedings towards a hearing, which included claims for such damages, some of which might not proceed to judgment until after 1 April 2013. Accordingly, it was appropriate for the Court of Appeal to state the position formally well ahead of the date when it would take effect. That had the advantage that proper prospective warning would be given to parties in, or contemplating, litigation. The court had concluded that the increase should apply to all cases where judgment was given after 1 April 2013 which had the merit of providing simplicity and clarity which were both so important in litigation. Accordingly, the court would declare that, with effect from 1 April 2013, the proper level of general damages for: (i) pain, suffering and loss of amenity in respect of personal injury; (ii) nuisance; (iii) defamation; and (iv) all other torts which caused suffering, inconvenience or distress to individuals, would be 10% higher than previously. David Sanderson (instructed by Shoosmiths) made written submissions for the appellant; Andrew Davis (instructed by Greenwoods) made written submissions for the respondent. Eileen O’Grady, barrister