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

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The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Carnwath CVO, Chairman + Professor Andrew Burrows Miss Diana Faber Mr Charles Harpum Mr Stephen Silber, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. This terms of this report were agreed on 15 December 1998. The text of this report is available on the Internet at: + http://www.open.gov.uk/lawcomm/ At the date of signing, the Chairman was the Honourable Mrs Justice Arden DBE, who was succeeded on 2 February 1999 by the Honourable Mr Justice Carnwath CVO. ii
THE LAW COMMISSION DAMAGES FOR PERSONAL INJURY: NON-PECUNIARY LOSS CONTENTS iii Paragraphs Page PART I: INTRODUCTION 1.1-1.11 1 PART II: WHERE CHANGE IS NOT REQUIRED 2.1-2.68 5 1. SHOULD DAMAGES FOR NON-PECUNIARY LOSS BE AVAILABLE AT ALL? 2. SHOULD ENGLISH LAW ADOPT THE CANADIAN “FUNCTIONAL” APPROACH TO THE ASSESSMENT OF DAMAGES FOR NON-PECUNIARY LOSS? 3. SHOULD A CLAIMANT WHO IS UNAWARE OF HIS OR HER INJURY BE ENTITLED TO DAMAGES FOR NON-PECUNIARY LOSS? 4. SHOULD THERE BE A THRESHOLD FOR THE RECOVERY OF DAMAGES FOR NON-PECUNIARY LOSS? 5. SHOULD INTEREST BE AWARDED ON DAMAGES FOR NON-PECUNIARY LOSS AND, IF SO, HOW MUCH INTEREST? 6. SHOULD DAMAGES FOR NON-PECUNIARY LOSS SURVIVE THE DEATH OF THE VICTIM? 7. DOES THE QUESTION OF OVERLAP (BETWEEN DAMAGES FOR LOSS OF EARNINGS AND DAMAGES FOR LOSS OF AMENITY) RAISED IN FLETCHER V AUTOCAR AND TRANSPORTERS LTD GIVE RISE TO DIFFICULTY? PART III: WHERE CHANGE IS REQUIRED I: INCREASING THE LEVELS OF DAMAGES 1. DAMAGES FOR NON-PECUNIARY LOSS FOR SERIOUS PERSONAL INJURY SHOULD BE INCREASED 2.1-2.3 5 2.4-2.7 5 2.8-2.24 6 2.25-2.28 10 2.29-2.58 11 2.59-2.64 19 2.65-2.68 20 3.1-3.205 22 3.1-3.110 22 (1) Our questions for consultees 3.1-3.3 22 (2) Consultees’ responses 3.4-3.20 23
Page 1: The Law Commission Law Com No 257 D
Page 5 and 6: v Paragraphs Page (5) How should aw
Page 7 and 8: the latest edition of the Judicial
Page 9 and 10: Chancellor’s Department, who advi
Page 11 and 12: 2.5 We rejected adoption of the “
Page 13 and 14: distinctions to be made on the basi
Page 15 and 16: 2.22 There was support for higher a
Page 17 and 18: 2.30 The recovery of interest on th
Page 19 and 20: interest is the date of service of
Page 21 and 22: eturn on any investment where the r
Page 23 and 24: likely to be small. On the other ha
Page 25 and 26: or not death was caused by the inju
Page 27 and 28: PART III WHERE CHANGE IS REQUIRED I
Page 29 and 30: variation between some consultees a
Page 31 and 32: special damages. For example, more
Page 33 and 34: 3.13 Of those who favoured one over
Page 35 and 36: Plaintiffs with substantial claims
Page 37 and 38: (a) Damages for non-pecuniary loss
Page 39 and 40: four bands, made up of those who re
Page 41 and 42: injuries in the present scale of aw
Page 43 and 44: (under the present law), but there
Page 45 and 46: woman which are among the worst tha
Page 47 and 48: amenity was £50,000. This becomes
Page 49 and 50: Up to the current maximum TABLE 2 4
Page 51 and 52: view the research findings indicate
Page 53 and 54:
3.63 We accept that there is truth
Page 55 and 56:
seem to us quite wrong for the gene
Page 57 and 58:
victim”, rather than to produce a
Page 59 and 60:
earnings and expenses at a purely n
Page 61 and 62:
The experience of other jurisdictio
Page 63 and 64:
although the pattern is not entirel
Page 65 and 66:
that a judge sitting on his own wit
Page 67 and 68:
and Wales has tended to fall behind
Page 69 and 70:
(V) THE LAW COMMISSION’S RECOMMEN
Page 71 and 72:
(1) Should juries play a greater ro
Page 73 and 74:
(a) Creation of a Compensation Advi
Page 75 and 76:
3.125 Some consultees raised the di
Page 77 and 78:
tariff. Persuasive arguments were m
Page 79 and 80:
with the “tariff” will be overt
Page 81 and 82:
3.146 Yet in Wright v British Railw
Page 83 and 84:
3.148 Housecroft v Burnett 181 is a
Page 85 and 86:
award of very much less will be app
Page 87 and 88:
judgments by the Court of Appeal an
Page 89 and 90:
3.162 We acknowledge that it is ent
Page 91 and 92:
3.167 In this regard we have found
Page 93 and 94:
the award in year 5 should be £x p
Page 95 and 96:
quadriplegia plus blindness plus de
Page 97 and 98:
personal injury cases recommended b
Page 99 and 100:
authorities. It was thought that th
Page 101 and 102:
PART IV WHERE CHANGE IS REQUIRED II
Page 103 and 104:
compensatory (including aggravated)
Page 105 and 106:
acket, and we envisage that in the
Page 107 and 108:
3. THE ASSESSMENT OF COMPENSATORY D
Page 109 and 110:
persuaded, in the light of consulte
Page 111 and 112:
not agree on the level at which a s
Page 113 and 114:
(7) Does the question of overlap (b
Page 115 and 116:
(4) Punitive and restitutionary dam
Page 117 and 118:
Damages (Role of Jury) 1 DRAFT OF A
Page 119 and 120:
EXPLANATORY NOTES This draft Bill i
Page 121 and 122:
APPENDIX C LIST OF PERSONS AND ORGA
Page 123 and 124:
Irwin Mitchell Martin Kramer, Kathe
Page 125 and 126:
The Medical Defence Union Ltd Natio
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damages for personal injury: non-pecuniary loss - Law Commission

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