The calculation of non-economic loss in motor accident cases also represents clear differences between the UK and NSW. The UK has adopted a guide in order to help determine the applicable award. This is known as the “Guidelines for the Assessment of General Damages in Personal Injury Cases” published by the Judicial College (JCG). This works by attaching a range of possible values that can be awarded for certain injuries, ergo a minimum and maximum figure will be provided. ‘For example, a minor hand injury receives general damages ranging from £737 to £3,509 under the JCG, while Claimants with quadriplegia can expect to receive between £262,350 and £326,700 depending on the age and former lifestyle of the Claimant.’ This guide therefore works by giving rough figures that are likely to be expected from each injury. At this point, other factors will come into play such as the severity of the injury/ pain and suffering, the age of the claimant and previous case law etc. This works to give the system some uniformity before the individuals of the case can be focused upon. However, it must be noted that ‘the Judicial College Guidelines are exactly that – a guide. Each case turns on its particular facts and appropriate medical evidence.’
In comparison, NSW has not adopted a guide or anything similar. The focus is upon how the injury has impacted the claimant’s life and how it has restricted their lifestyle. Consequently, each assessment is extremely subjective. The four factors, which are provided in the definition on non-economic loss provided above, will be considered. The result is that each assessment is very much isolated and this can make it more difficult to estimate the level of award. Interestingly, this means that higher ratings of whole person impairment do not automatically generate a higher award for non-economic loss; the whole person impairment becomes irrelevant when assessing non-economic loss. However, common principles are influential and should be considered. In this sense, case law can also influence the assessor or judge’s assessment. For example, the case of Reece v Reece is an important judgement that dictates that the age of the claimant is a relevant consideration. It should also be noted that there is a maximum amount of damages that can be awarded, which is $521,000 as at 1 October 2016.
The difference in how non-economic loss will be assessed is therefore meaningful for motor accident cases. NSW seems to have adopted a process, which offers a more subjective outlook on each case. In contrast, the UK has adopted guidelines that attempts to give some uniformity but that does still allow for the subjective elements of each case to be explored.