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

approach, and that it would not be impossible to make a broad division between
past and future non-pecuniary loss. We asked consultees whether interest should
be awarded only on damages for past non-pecuniary loss, and, if so, should this be
coupled with a higher rate of interest, and/or should interest run from an earlier
date.
2.34 The majority, 71 per cent, were not in favour of change. They put forward
arguments on grounds of principle and of practicality. For example, Peter Cane
pointed out that damages are not in any direct way calculated with respect to the
period of the claimant’s suffering and so cannot be divided temporally. Separation
of non-pecuniary loss into past and future components was seen as arbitrary,
artificial and inappropriate, and implied that such damages can be assessed
scientifically, when this is far from the case. Even consultees who opposed the
payment of any interest tended to take the view that, if it were payable, it should be
payable in respect of both pre- and post- trial loss.
2.35 Practical points were decisive for many. A distinction would be difficult to draw
and would therefore increase costs. An advantage would be given to dilatory
claimants. The courts’ task would be more complicated and an additional
unnecessary ground of appeal would be created.
2.36 The minority favoured a change in practice, essentially on the grounds put forward
in the consultation paper. No consensus emerged, however, on whether this
change should be accompanied by an increase in the interest rate, or a change in
the date from which interest should run.
2.37 In the light of the majority view, and in the absence of a consensus by the
minority on the associated issues concerning interest, we have concluded,
with some reluctance, that the law should not be changed to provide for
interest to be payable only on damages for past non-pecuniary loss. We
attach weight to the views expressed concerning the impracticality of change. We
remain convinced, however, that the more principled approach would be to effect
a split. 31
Accordingly, we consider that this concession to claimants should be
reflected in the measures recommended in respect of the date from, and the rate at
which, interest is payable.
2.38 We next considered the date from which interest should be payable. We noted in
the consultation paper that in Jefford v Gee 32
the Court of Appeal chose the date of
service of the writ as the date from which interest should usually be awarded. This
was justified by three considerations, restated with approval by Lord Diplock in
Wright v British Railways Board. 33
First, non-pecuniary loss does not occur all at
once, and is not easily quantified at the date of the accident; secondly, the claimant
is only kept out of his or her money from the time when the defendant ought to
have paid it, which is when the action was brought; thirdly, if the starting point for
Commission, Report on Civil Liability and Compensation for Personal Injury (1978)
Cmnd 7054, Volume I, para 747.
31 See on this point McGregor on Damages (16th ed 1997), para 652.
32 [1970] 2 QB 130.
33 [1983] 2 AC 773.
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