damages for personal injury: non-pecuniary loss - Law Commission

2.17 Although we still have doubts about the arguments in favour of an award of
damages for non-pecuniary loss for claimants who are permanently unconscious,
we are persuaded by the views of the majority that damages should continue to be
awarded. In addition we accept that it is likely that this attitude is widely held
amongst the public at large. 11
We are also bolstered in this conclusion by the fact
that it is endorsed by the case law. 12
2.18 A further consideration is what the level of such damages should be. We see two
main difficulties with setting damages at a lower level than at present. First, there
was no consensus amongst consultees about what this lower level should be.
Secondly, no clear justification for any particular lower amount emerged. The best
justification for the award of any damages seems to us to be that loss of amenity
should be objectively assessed. If this is the case, the total loss of amenity suffered
by a permanently unconscious claimant justifies an award at the upper end of the
bracket for damages for non-pecuniary loss, subject to diminution, for example
where the victim has a short life expectancy. 13
2.19 Accordingly we do not recommend changing the rules for damages for
non-pecuniary loss in respect of permanently unconscious claimants. We
note that the present law can be said to meet the concerns of consultees who were
anxious that the victim’s family should not go uncompensated. Although damages
are awarded to the permanently unconscious person, in practice it seems likely
that the relatives closest to the victim also benefit from the award.
2.20 The separate issue raised by us in respect of claimants who are conscious, but
severely brain-damaged, is to some degree overtaken by our conclusion that
damages for permanently unconscious victims should be unchanged. If it is
accepted that damages should be awarded to that category of victim, it seems
inevitable that they should also be awarded to those who are conscious, but lack
insight. In the consultation paper we accepted that, even applying a subjective
approach to the assessment of non-pecuniary loss, it would be invidious to
distinguish significantly between conscious claimants on the basis of their levels of
awareness. 14
2.21 Fifty-nine per cent of consultees who examined this issue were in favour of
continuing to award damages to such victims within, or near, the highest bracket
of awards. Thirty per cent were in favour of a mid-range bracket or an even lower
sum, and 11 per cent made other suggestions for the level of the award to be
made.
11 We can also see that provision for a nil award for a person who is permanently unconscious
may cause injustice, if the diagnosis were erroneous, although we would hope that the
forensic process involved in a personal injury action would be sufficient to avoid this
outcome. See para 2.14 above.
12 See para 2.9 above.
13 The point was made by Peter Andrews QC and Wyn Williams QC that in practice damages
for non-pecuniary loss to unconscious claimants are rarely actually in the top bracket,
because injuries leading to permanent unconsciousness will often have a significant impact
on life expectancy.
14 See also para 2.13 above.
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