Chris Brunt is a Personal injury lawyer, a barrister and acting solicitor who will consider cases on a “No win No Fee* basis, otherwise known as a Conditional Fee Arrangement. Chris is an Associate Barrister with Phillips Barristers and Solicitors. To contact Chris for a 30 Minutes free consultation contact him on 200 73900 or +350 54089923 or email Chris at chris.brunt@phillips.gi. Or use the contact form here
Chris Brunt is a Gibraltar personal injury lawyer, a barrister and acting solicitor of the Supreme Court of Gibraltar who will consider all personal injury claims on a No Win No Fee basis. Contact me for a free consultation to see if I can help you win the compensation you are entitled to. Use the contact form here and I will get back to you to discuss your claim.
NO WIN NO FEE?- Click Here Quantifying personal injury claims in Gibraltar requires a distinct approach combining local legislation, Gibraltar case law and, where appropriate, English authorities and actuarial material.
Although Gibraltar law draws substantially upon English common law principles, important local statutory provisions affect the assessment of damages. Particular care is required in relation to the Judicial College Guidelines, the personal injury discount rate, limitation periods, interest, statutory benefit deductions and the treatment of future losses.
The Statutory Framework: Contract and Tort Act and Damages Act 2019
Personal injury damages in Gibraltar are governed principally by the Contract and Tort Act and the Damages Act 2019, as amended, together with the applicable procedural rules.
Contributory Negligence
Section 10 of the Contract and Tort Act governs the apportionment of liability where the claimant’s own negligence contributed to the damage suffered.
Where contributory negligence is established, the claimant’s damages are reduced to such extent as the court considers just and equitable having regard to the claimant’s share in responsibility for the damage.
The reduction is applied after the damages have otherwise been assessed, subject to the particular statutory treatment of certain benefits described below.
Interest
Section 14 of the Contract and Tort Act gives the court a discretion to award interest on damages at such rate as it thinks fit, on all or part of the damages and for all or part of the period between accrual of the cause of action and judgment.
There is therefore no statutory rule automatically requiring interest at 2% on general damages.
In Walker v Ormrod Electricity Supply Company Ltd [2017 Gib LR 229], the Supreme Court awarded interest on general damages at 2% per annum from the date proceedings were issued until trial. That was an exercise of the court’s discretion rather than a fixed statutory formula. The claimant in Walker did not pursue interest on the past pecuniary losses, so the case does not provide a complete template for interest in every personal injury action.
Deduction of Certain Statutory Benefits
Section 15 of the Contract and Tort Act requires account to be taken of certain benefits payable under the Social Security (Employment Injuries Insurance) Act.
Broadly, one half of the relevant benefits accruing during the five years beginning with the accrual of the cause of action is taken into account against damages for loss of earnings or profits.
Where damages are also to be reduced for contributory negligence, the statutory benefit deduction is calculated against the total damages before the contributory negligence reduction is made. This sequencing was applied in Walker.
The Damages Act 2019
The Damages Act 2019 established statutory rules concerning the personal injury discount rate and the guidelines to be used in assessing general damages.
The Act was amended in 2023 to introduce provisions concerning periodical payments and the variation of periodical payment orders and settlements.
Pain, Suffering and Loss of Amenity
Damages for pain, suffering and loss of amenity compensate a claimant for the non-financial effects of injury. Relevant factors may include:
- the nature and seriousness of the injury;
- the duration and intensity of pain;
- the extent of recovery;
- permanent disability;
- psychological consequences;
- loss of independence;
- restrictions on employment, sport and recreation; and
- the effect of the injury on the claimant’s overall quality of life.
Judicial Guidelines: From Bernal and Walker to the Damages Act 2019
Before the Damages Act 2019, Gibraltar courts had to determine which external guidelines provided the most appropriate basis for valuing general damages.
In Bernal v Riley [2016 Gib LR 314], the Supreme Court applied the Northern Ireland Guidelines, at least as an interim approach. The issue was decided without the benefit of adversarial argument.
The matter was reconsidered in Walker v Ormrod Electricity Supply Company Ltd [2017 Gib LR 229], where Jack J again applied the Northern Ireland Guidelines.
The difference was significant. In Walker, Jack J indicated that, had he been obliged to apply the English Guidelines, he would have awarded £52,500, whereas he assessed general damages at £82,750 using the Northern Ireland Guidelines.
The statutory position subsequently changed.
Section 4 of the Damages Act 2019 allows the Chief Justice, following the prescribed consultation process, to issue Gibraltar-specific guidelines for the assessment of general damages in personal injury cases.
Where no relevant Gibraltar-specific guidelines have been issued, the court must have regard to the Guidelines for the Assessment of General Damages in Personal Injury Cases issued by the Judicial College of England and Wales, as amended or replaced from time to time.
Section 4(4) provides that those Guidelines are to be read “with such modifications (for example, in nomenclature) as the circumstances of Gibraltar may require and so far only as the circumstances of Gibraltar may permit.”
Section 4(4) does not itself prescribe a general Gibraltar uplift or alternative tariff. The statutory default remains the Judicial College Guidelines, read with such modifications as the circumstances of Gibraltar require and permit.
Accordingly, Bernal and Walker remain important historical authorities, but their adoption of the Northern Ireland Guidelines does not state the present statutory position.
Past Pecuniary Losses
Past pecuniary losses compensate the claimant for financial losses incurred between the accident and the date of trial or settlement.
Past Loss of Earnings
Past loss of earnings is usually calculated by comparing what the claimant would probably have earned but for the injury with what was actually earned during the relevant period. Overtime, bonuses, commission and other variable payments may require careful analysis.
In Walker, the claimant had temporarily been working increased overtime because a colleague had been disqualified from driving for 12 months following a drink-driving conviction.
The Supreme Court accepted that the claimant would probably have continued receiving those increased earnings only for the 36 weeks remaining on the colleague’s disqualification following the accident. The court therefore used the higher earnings figure for that period before reverting to the claimant’s lower underlying earnings level.
The case illustrates the importance of distinguishing between normal continuing earnings and a temporary increase which would not have persisted indefinitely.
Medical, Prescription and Rehabilitation Expenses
Reasonable medical, pharmaceutical, rehabilitation and equipment costs caused by an injury may be recoverable, provided they are properly evidenced and reasonably incurred.
Gratuitous Care
A claimant may recover damages reflecting necessary care and assistance provided without charge by relatives or friends. The nature, extent and duration of the care must be established by evidence.
In Walker, the court assessed the care likely to have been provided and, for the longer second period, allowed 10 hours per week over 43 weeks rather than the higher amount claimed. The relative who provided the care did not give evidence.
The case demonstrates that where evidence concerning gratuitous care is imprecise or unsupported, the court may make its own reasonable assessment on the evidence available.
Future Pecuniary Losses
Future pecuniary losses compensate for financial consequences which are likely to continue after settlement or judgment. They may include:
- future loss of earnings;
- future care;
- medical treatment;
- rehabilitation;
- equipment;
- accommodation costs; and
- other continuing expenses caused by the injury.
Where a future stream of loss is converted into a lump-sum award, an actuarial multiplier is ordinarily applied.
The Applicable Discount Rate
Section 3 of the Damages Act 2019 governs the assumed rate of return. The court must take into account any rate prescribed by an Order made by the Gibraltar Minister responsible for Justice.
If and to the extent that Gibraltar has not prescribed its own rate, the Act provides that the applicable rate is that set out in an Order made under the United Kingdom’s Damages Act 1996 in relation to England and Wales.
At the date of publication, the personal injury discount rate applicable in England and Wales is +0.5%, with effect from 11 January 2025. (This can vary please check from time to time it is accurate)
Practitioners should always check the applicable rate at the date damages are being assessed rather than rely upon the rate used in older Gibraltar cases. For example, the −0.75% rate used in Walker reflected the position prevailing when that case was decided and was agreed between the parties. It is not the current rate.
Future Loss of Earnings
Where an injury permanently reduces the claimant’s capacity to earn, future loss may be calculated by reference to an appropriate annual multiplicand and actuarial multiplier.
The Ogden Tables may assist with this exercise, subject to the applicable discount rate, the available evidence and any features particular to Gibraltar.
Loss of Earning Capacity: Smith v Manchester
A claimant may remain in employment and have little or no immediately identifiable future earnings loss, but nevertheless suffer a disadvantage in the labour market as a result of permanent disability.
In an appropriate case, an award may therefore be made under the principle associated with Smith v Manchester Corporation (1974) 17 KIR 1 to reflect the risk that the claimant may lose existing employment and experience difficulty obtaining equivalent work.
This is of particular significance in Gibraltar.
In Walker, Jack J explained that the statistical information used by the compilers of the Ogden Tables to calculate the employment risks faced by disabled workers in England and Wales did not exist for Gibraltar at that time. That limited the ability simply to apply the conventional Ogden disability adjustments, and the court therefore considered a Smith v Manchester award instead.
In Walker itself, the parties agreed that an award on that basis should be made. The dispute concerned its amount: the claimant contended for two years’ earnings and the defendant for six months. The Supreme Court awarded a sum equivalent to two years of the claimant’s underlying net earnings of £522.51 per week.
The appropriate award in another case will depend upon such factors as the claimant’s age, occupation, qualifications, disability, job security, prospects of alternative employment and the local labour market.
Self-Employed Claimants
Claims by self-employed individuals frequently require detailed examination of accounts and other financial evidence. Gross business turnover does not necessarily represent the claimant’s personal financial loss.
The court will ordinarily need to determine the claimant’s true net earnings or profits attributable to their work, taking account of relevant business expenses, overheads, tax records and costs which would have been incurred irrespective of the injury.
Accounts and tax returns are therefore important evidence, but the ultimate question remains the financial loss actually caused by the injury.
Life Expectancy and Expert Evidence: Gonzalez v Gibraltar Health Authority
The assessment of substantial future losses may depend heavily upon a claimant’s projected life expectancy.
The Gibraltar Supreme Court considered this issue in Gonzalez v Gibraltar Health Authority [2024 Gib LR 1] (2024/GSC/001), a clinical negligence claim arising from the treatment of an infected toe which led to a below-knee amputation.
The ordinary starting point is life expectancy derived from the Ogden Tables. The Explanatory Notes to the Tables provide that no adjustment is required unless there is clear evidence that the claimant is “atypical” and can be expected to experience a significantly shorter or longer than average lifespan.
In Gonzalez, the claimant relied on Table 1 of the 8th edition of the Ogden Tables to say that he could be expected to live to age 86. The defendant sought to rely on a report from a consultant physician who, applying a bespoke methodology, estimated that the claimant would have lived to age 75.7 without the alleged negligence, and to age 75.47 taking its consequences into account.
Yeats J refused permission for the separate life-expectancy evidence at that stage. Following the English decision in Dodds v Arif [2019] EWHC 1512 (QB), he held that the starting point for life-expectancy evidence is the clinical experts already instructed, in that case the vascular surgeons. They had to be given the opportunity to address both whether the injury had affected the claimant’s life expectancy and whether his pre-existing conditions made him atypical.
Under the approach summarised in Dodds, permission for bespoke evidence from a life-expectancy expert will not ordinarily be given unless:
- the clinical experts cannot offer an opinion at all;
- the clinical experts state that they require specific input from a life-expectancy expert; or
- the clinical experts deploy, or wish to deploy, statistical material but disagree on the correct approach to it.
The decision also carries a practical lesson. The defendant relied on a short email from its vascular surgery expert saying that the exercise was best performed by a specialist. The court gave that little weight, particularly because it had not been shown what the expert had been asked. Parties who consider that bespoke evidence is needed should put the life-expectancy question to the clinical experts formally and be able to show exactly what was asked.
Yeats J also observed that it would have been more helpful had the claimant’s solicitors made their position clear earlier, which might have avoided the cost of the defendant’s report and the application.
The decision did not establish that bespoke life-expectancy evidence can never be admitted. The court expressly contemplated that the application could be renewed if, once the clinical experts had formally considered life expectancy, it became apparent that bespoke evidence was needed.
Gonzalez was an interlocutory decision concerning expert evidence rather than a final assessment of damages, but it provides useful guidance on when bespoke life-expectancy evidence may become appropriate and on the need for a proper clinical foundation before moving beyond the standard Ogden assumptions.
Periodical Payments
The periodical payment provisions were added to the Damages Act 2019 by the Damages (Amendment) Act 2023, which came into effect on 8 June 2023.
Where a court awards damages for future pecuniary loss, section 5 provides that it may order that the damages be paid wholly or partly by periodical payments and must consider whether to make such an order.
There is an important Gibraltar-specific restriction. A court may not make a periodical payment order unless the paying party is:
- the Government;
- the Gibraltar Health Authority; or
- the Care Agency.
A court-ordered periodical payment order is therefore not available against an ordinary private defendant or private insurer, even where the insurer would in practice fund the damages.
For future pecuniary loss where one of the three permitted public bodies is the paying party, the court may make a periodical payment order without the parties’ consent. For other damages, section 5(2) requires the parties’ consent before the court may order periodical payments. That provision remains subject to section 5(3), so the paying party must still be the Government, the Gibraltar Health Authority or the Care Agency.
The restriction in section 5(3) concerns the court’s statutory power to order periodical payments. It does not prevent parties from agreeing a settlement providing for periodical payments, including in a privately insured claim. Section 6 expressly recognises settlements which provide for periodical payments and permits statutory provision to be made for their variation in specified circumstances.
Unless the order provides otherwise, periodical payments are treated as varying by reference to the index of retail prices published by the Government Statistician. The court may disapply or modify that indexation.
The legislation also regulates the assignment of periodical payments and provides machinery for variation. The Damages (Variation of Periodical Payments) Order 2023 supplements the statutory provisions concerning variation.
Limitation Periods
Personal injury claims in Gibraltar are governed by the Limitation Act. For actions founded upon negligence, nuisance or breach of duty in which damages for personal injuries are claimed, the ordinary limitation period is three years.
Gibraltar’s system differs materially from that applying in England and Wales. In England, the Limitation Act 1980 contains a statutory date-of-knowledge regime and a broad discretionary power under section 33 to permit certain otherwise time-barred personal injury claims to proceed. Gibraltar does not replicate that structure.
Late Knowledge: Sections 5 and 6
Where the ordinary three-year period has expired, sections 5 and 6 of the Gibraltar Limitation Act provide a specific mechanism by which the claimant may seek the court’s leave.
The claimant must establish that material facts of a decisive character were at all times outside their actual or constructive knowledge until a date not earlier than three years before the action was brought.
This is a materially narrower mechanism than the broad discretion available under section 33 of the English Limitation Act 1980. The Gibraltar court applies the statutory tests in sections 5 and 6 rather than carrying out the general balancing exercise undertaken under the English provision.
An application for leave is ordinarily made ex parte. Leave need not be obtained before proceedings are issued: section 6 also allows an application after the action has begun, although an additional condition then applies.
Obtaining leave does not necessarily end the limitation question. Leave is granted on the claimant’s evidence, assessed in the absence of any evidence to the contrary, and section 5 requires both that leave has been granted and that the late-knowledge requirements are actually fulfilled. A defendant may therefore still contest those requirements at trial.
The Gibraltar regime is consequently not an automatic extension running from a later “date of knowledge” equivalent to the English statutory scheme. It is a distinct leave mechanism with its own substantive and procedural requirements.
Disability
The Limitation Act contains separate provisions where the person entitled to bring proceedings was under a legal disability, such as being a child, when the cause of action accrued.
Under the current legislation, the general disability extension is modified in personal injury cases so that the relevant period is three years rather than six years from the date the disability ends or the person dies.
Older versions of the legislation contained an additional restriction concerning children in the custody of a parent. That restriction was removed from section 28(2) by the Limitation (Amendment) Act 2016 and does not appear in the current legislation.
Death and Dependency Claims
Where the injured person has died, separate provisions of the Limitation Act apply. Sections 7 to 7B should be considered in claims brought by an estate or in dependency claims.
Certain Proceedings Against the Crown
Section 32A contains a further Gibraltar-specific exception. The ordinary three-year personal injury limitation period does not apply to proceedings against the Crown relating to:
- neglect, ill-treatment or other abuse of a child who was being looked after by the Crown when the cause of action accrued; or
- mesothelioma alleged to have been caused by exposure to asbestos during employment by the Crown.
For these purposes, the Crown means the Crown in right of the Government of Gibraltar and its agents. Claims against private care providers, private employers or other private defendants remain subject to the ordinary limitation provisions.
Interim Payments
A claimant does not necessarily have to wait until final trial or settlement before receiving part of their damages. The Civil Procedure Rules applicable in Gibraltar permit interim payments in appropriate cases.
An interim payment may, among other circumstances, be ordered where:
- the defendant has admitted liability to pay damages;
- judgment has been entered for damages to be assessed; or
- the court is satisfied that, if the claim proceeded to trial, the claimant would obtain judgment for a substantial amount of money.
The amount ordered must not exceed a reasonable proportion of the likely amount of the final judgment, and the court must take account of matters such as any likely reduction for contributory negligence.
Interim payments can be particularly important in serious or catastrophic injury cases where funds are needed before final quantum has been determined, including for rehabilitation, treatment, care, accommodation or day-to-day living expenses.
Conclusion
The valuation of personal injury claims in Gibraltar requires consideration of local statute, Gibraltar authority and, where incorporated or persuasive, English materials.
The Damages Act 2019 now provides the statutory framework governing the personal injury discount rate and the guidelines used in assessing general damages. The Act, as amended in 2023, also governs periodical payments in the cases to which those provisions apply.
Earlier Gibraltar authorities such as Bernal v Riley and Walker v Ormrod Electricity Supply Company Ltd remain important in understanding the development of damages law and in illustrating the assessment of individual heads of loss. They must, however, be read in light of the statutory regime subsequently enacted.
Walker remains particularly useful in relation to fluctuating earnings, gratuitous care, labour-market disadvantage and the practical significance of Smith v Manchester awards in Gibraltar.
Gonzalez v Gibraltar Health Authority provides important guidance on the use of the Ogden Tables, atypical life expectancy and the circumstances in which bespoke expert evidence may become appropriate.
Limitation also requires particular care. Gibraltar has its own statutory regime, and practitioners should not assume that the English date-of-knowledge and section 33 provisions apply. Ultimately, accurate valuation depends upon careful identification of each recoverable head of loss, reliable factual and financial evidence, appropriate actuarial assumptions and application of the current Gibraltar statutory framework.
Contact Chris Brunt: Call me for an initial discussion about your circumstances at Phillips Barristers and Solicitors, 292 Main Street, Gibraltar, email me at chris.brunt@phillips.gi or call 200 73900.
All opinions are my own and are provided for information only and do not constitute legal advice. The information and commentary on Gibraltar law contained in this article are provided free of charge for general information purposes only. Every reasonable effort is made to ensure that the information is accurate and up to date, but no responsibility is accepted for its accuracy or for any consequences of reliance upon it
