Why Simmons v Castle matters for employment law

by Laurie Anstis on October 7, 2012

As part of his review of civil litigation costs, Lord Justice Jackson recommended (pdf, para 2.4) that court awards for general damages should be increased by 10%.

General damages are awards that are given for “pain, suffering and loss of amenity”. In other words, it is the compensation you get in a personal injury claim (and some other claims) simply for the fact that you have been injured or hurt, without having to show that the injury has caused you financial loss.

The Court of Appeal took advantage of the otherwise unremarkable case of Simmons v Castle [2012] EWCA Civ 1039 to put this recommendation into effect. The Lord Chief Justice announced that (para 20):

“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 cause suffering, inconvenience or distress to individuals, will be 10% higher than previously.”

This change applies to all cases where judgment is given after 1 April 2013 (para 19).

This caused consternation amongst personal injury lawyers, particularly in relation to how it will apply to cases already in progress, where settlement offers may already have been made. This lead the Court of Appeal to take the unusual step of reviewing the case, and their revised judgment is due to be handed down next Wednesday.

Why does this matter to employment law?

Although the Court of Appeal did not expressly mention employment law claims, and may even not have had them in mind, they do say, at paragraph 14, that:

“the increase in general damages we are laying down here extends to tort claims other than personal injury actions”

and in their final paragraph, that it covered:

all other torts which cause suffering, inconvenience or distress to individuals”

The combined effect of section 124 and 119 of the Equality Act 2010 is that in discrimination cases an employment tribunal has power to award compensation on the same principles as would apply to tort claims, and this can include an award for compensation for injury to feelings. Discrimination is often described as a “statutory tort”, and while the point may have eventually to be resolved by the Employment Appeal Tribunal, it looks a lot like the effect of Simmons v Castle is also to raise compensation for injury to feelings in discrimination claims (assessed by reference to the “Vento bands“) by 10%.

On Wednesday we will get further clarification as to how this affects existing cases.

[Update 10 Oct 2012: the revised judgment is now available.]